<PAGE> 1
================================================================================
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 (Date of earliest event reported): JANUARY 27, 2000
CENTEX CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 1-6776 75-0778259
(State of other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
2728 N. HARWOOD, DALLAS, TEXAS 75201
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (214) 981-5000
NOT APPLICABLE
(Former name or former address, if changed from last report)
================================================================================
<PAGE> 2
ITEM 5. OTHER EVENTS.
Reference is hereby made to the Registrant's Registration
Statement on Form S-3 (File No. 333-94221), filed with the Securities and
Exchange Commission (the "Commission") on January 7, 2000 and declared effective
thereby on January 24, 2000 (the "Registration Statement"), pursuant to which
the Registrant registered $750,000,000 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 January 27, 2000, the Registrant commenced its $400,000,000
Medium-Term Note Program, to allow the Registrant to offer $400,000,000
aggregate principal amount of Senior Medium-Term Notes, Series C (the "Senior
Debt Securities") and/or Subordinated Medium-Term Notes, Series C (the
"Subordinated Debt Securities"), covered by the Registration Statement.
On January 27, 2000, the Registrant entered into a
Distribution Agreement (the "Distribution Agreement") with Banc One Capital
Markets, Inc., Banc of America Securities LLC, Chase Securities Inc., Credit
Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated and Warburg
Dillon Read LLC (collectively, the "Agents"), in connection with the proposed
public offering by the Agents of $400,000,000 aggregate principal amount of
Senior Debt Securities and/or Subordinated Debt Securities, covered by the
Registration Statement. The Distribution Agreement in the form in which it was
executed is filed herewith as Exhibit 1.1.
The Registrant has previously 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
Registrant's 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 Event: October 21, 1998) filed October 30, 1998, and is incorporated
herein by reference.
Pursuant to the Senior Indenture, the Registrant and the
Trustee entered into an Indenture Supplement No. 3, dated as of January 27, 2000
(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 is filed herewith as Exhibit 4.2.
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 Registrant's
subordinated debt securities. A copy
2
<PAGE> 3
of the Subordinated Indenture in the form in which it was executed was filed as
Exhibit 4.5 to Amendment No. 1 to the Registrant's Registration Statement on
Form S-3 (File No. 333-72893), filed with the Commission on May 14, 1999, and is
incorporated herein by reference.
Pursuant to the Subordinated Indenture, the Registrant and the
Trustee entered into an Indenture Supplement No. 6, dated as of January 27, 2000
(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.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
1.1 Distribution Agreement dated January 27, 2000, between Centex
Corporation and Banc One Capital Markets, Inc., Banc of
America Securities LLC, Chase Securities Inc., Credit Suisse
First Boston Corporation, Morgan Stanley & Co. Incorporated
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. 3 dated as of January 27, 2000 with
respect to the Senior Debt Securities, between Centex
Corporation and Chase Bank of Texas, National Association.
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 4.5 to
Amendment No. 1 to the Registrant's Registration Statement on
Form S-3 (File No. 333-72893), filed with the Commission on
May 14, 1999, and incorporated herein by reference).
4.4 Indenture Supplement No. 6 dated as of January 27, 2000 with
respect to the Subordinated Debt Securities, between Centex
Corporation and Chase Bank of Texas, National Association
(formerly, Texas Commerce Bank National Association).
</TABLE>
3
<PAGE> 4
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, hereunto duly authorized.
CENTEX CORPORATION
By: /s/ Raymond G. Smerge
-------------------------------
Name: Raymond G. Smerge
Title: Executive Vice President,
Chief Legal Officer and Secretary
Date: January 28, 2000.
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
1.1 Distribution Agreement dated January 27, 2000, between Centex
Corporation and Banc One Capital Markets, Inc., Banc of
America Securities LLC, Chase Securities Inc., Credit Suisse
First Boston Corporation, Morgan Stanley & Co. Incorporated
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. 3 dated as of January 27, 2000 with
respect to the Senior Debt Securities, between Centex
Corporation and Chase Bank of Texas, National Association.
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 4.5 to
Amendment No. 1 to the Registrant's Registration Statement on
Form S-3 (File No. 333-72893), filed with the Commission on
May 14, 1999, and incorporated herein by reference).
4.4 Indenture Supplement No. 6 dated as of January 27, 2000 with
respect to the Subordinated Debt Securities, between Centex
Corporation and Chase Bank of Texas, National Association
(formerly, Texas Commerce Bank National Association).
</TABLE>
<PAGE> 1
FINAL
EXHIBIT 1.1
CENTEX CORPORATION
$400,000,000
Senior Medium-Term Notes, Series C
Subordinated Medium-Term Notes, Series C
Due 9 Months or More from Date of Issue
DISTRIBUTION AGREEMENT
January 27, 2000
Banc One Capital Markets, Inc.
1 Bank One Plaza, Suite IL1-0595
Chicago, Illinois 60670
Banc of America Securities LLC
100 North Tyron Street
Mail Code NC1-007-07-01
Charlotte, North Carolina 28255
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017-2070
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Morgan Stanley & Co., Incorporated
1585 Broadway
New York, New York. 10036
Warburg Dillon Read LLC
677 Washington Blvd.
Stamford, CT 06901
Ladies and Gentlemen:
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
<PAGE> 2
and sale from time to time by the Company of its Senior Medium-Term Notes,
Series C (the "Senior Notes") and its Subordinated Medium-Term Notes, Series C
(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 third
Supplemental Indenture thereto dated as of January 27, 2000, and the
Subordinated Notes will be issued under a Subordinated Indenture (the
"Subordinated Indenture") dated as of March 12, 1987, as supplemented by a sixth
Supplemental Indenture thereto dated as of January 27, 2000, 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").
As of the date hereof, the Company has authorized the issuance and sale
of up to $400,000,000 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
2
<PAGE> 3
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,
redemption provisions, amortization schedules, maturities or other similar terms
offered on the Notes (whether pursuant to a term sheet or otherwise), and,
unless an Agent shall 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 Registration Statement or 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 a registration statement (File
No. 333-94221) in respect of the Notes in the form heretofore delivered or to be
delivered to each Agent (the various parts of such registration statement, the
Prospectus, all exhibits thereto (other than the Statements of Eligibility under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") of a
corporation designated to act as Trustee, on Form T-1), each as amended, at the
time such registration statement or amendment thereto became effective, being
hereinafter collectively called the "Registration Statement") and the
Registration Statement (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 form has been declared effective by the SEC and no
stop order suspending the effectiveness of the Registration Statement as amended
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 the
Registration Statement as amended being hereinafter called a "Preliminary
Prospectus;" the prospectus relating to debt securities of the Company
registered pursuant to the Registration Statement (including the Notes) and the
prospectus supplement or term sheet 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 the Registration Statement or any part thereof
shall be deemed to refer to and include any documents filed after the date of
the Registration Statement or any such part thereof 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
3
<PAGE> 4
reference therein as of the date of such filing or transmission; any references
to information "set forth in," "stated in," or "described in" the Registration
Statement or the Prospectus or references of like import shall include any
information contained in documents incorporated by reference therein);
(b) The documents incorporated by reference in the Registration
Statement, 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 SEC, in all material respects to
the requirements of the Securities Act and 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;
(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
4
<PAGE> 5
outstanding capital stock; 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 as a corporation or
organized as a limited liability company, as the case may be, and is validly
existing as a corporation or limited liability company, as the case may be, in
good standing under the laws of its jurisdiction of incorporation or
organization, as the case may be; each of the Company and its subsidiaries has
full power and authority (corporate and other) to own its properties and conduct
its business as described, or incorporated by reference, in the Prospectus, and
has been duly qualified as a foreign corporation, or limited liability company,
as the case may be, for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction;
(g) The Company has an authorized capitalization as set forth, or as
incorporated by reference, in the Prospectus, and all of the outstanding shares
of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and nonassessable; and all of the outstanding shares of
capital stock or outstanding interests of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and nonassessable
and (except (i) for directors' qualifying shares, (ii) as set forth on Schedule
I hereto and (iii) as otherwise set forth in the Prospectus) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims affecting transferability or voting except as set forth in
the Prospectus;
(h) The Notes have been duly authorized, and, when executed,
authenticated, issued and delivered against payment therefor pursuant to this
Agreement, the 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 the
applicable 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
5
<PAGE> 6
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;
(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 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
6
<PAGE> 7
respective periods to which they apply, and such financial statements have been
prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved except as may be expressly
stated in the notes thereto. The financial information and statistical data set
forth in the Prospectus under the caption "Summary of Selected Financial Data"
are fairly presented and prepared on a basis consistent with such consolidated
financial statements or the books and records of the Company, as the case may
be, unless otherwise stated in the Prospectus;
(n) Except as described in the Prospectus, the Company and each of its
subsidiaries have all necessary licenses, certificates, consents, permits,
authorizations, approvals, rights and orders of and from all governmental
agencies or bodies having jurisdiction over the Company or any of its
subsidiaries to own their respective properties and conduct their respective
businesses as described in the Prospectus, the failure to possess or the failure
to operate in compliance with which would have a material adverse effect on the
business of the Company and its subsidiaries, taken as a whole, and the Company
has received no notice of proceedings relating to the revocation or modification
of any such certificate, authority or permit that, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would materially
adversely affect the business, assets, financial position or prospects of the
Company and its subsidiaries, taken as a whole;
(o) This Agreement has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
and any Terms Agreement with respect to the Notes, when executed and delivered
by the Company, will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject, in each
case, as to enforcement, to bankruptcy, insolvency, reorganization, and other
laws of general applicability relating to or affecting creditors' rights, and to
general equity principles, and except to the extent that rights of
indemnification hereunder may be limited by applicable laws or equity
principles;
(p) Except as described in the Prospectus, each of the Company and its
subsidiaries owns or possesses all of the patents, trademarks, service marks,
trade names, copyrights and licenses and rights with respect to the foregoing,
necessary for the present conduct of its business, without any known conflict
with the rights of others, the result of which conflict would materially and
adversely affect the business, assets, financial position or prospects of the
Company and its subsidiaries, taken as a whole;
(q) There are no contracts, indentures, mortgages, loan agreements,
notes, bonds, debentures, other evidences of indebtedness, leases or other
agreements or instruments of the Company of a character required to be described
or referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or referred to or
filed as required;
(r) No labor disturbance exists with the employees of the Company or
any of its subsidiaries, or, to the best of the Company's knowledge, is
imminent, that would result in a material adverse effect upon the Company and
its subsidiaries, taken as a whole, and the 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
7
<PAGE> 8
adversely affect the business, assets, financial position or prospects of the
Company and its subsidiaries, taken as a whole;
(s) The conditions to the use of a registration statement on Form S-3
under the Securities Act, as set forth in the General Instructions to Form S-3,
have been satisfied with respect to the Company and the Registration Statement
and Prospectus;
(t) The Remarketing Agreement, if applicable, has been duly and validly
authorized, executed and delivered by the Company and, assuming the Remarketing
Agreement has been duly authorized, executed and delivered by the Remarketing
Agent (as defined in the Prospectus), will be a valid and legally binding
agreement of the Company; and
(u) Neither the Company nor any of its subsidiaries is required to be
registered under the Investment Company Act of 1940, as amended.
Any certificate signed by any director or officer of the Company and
delivered to the Agents or their counsel in connection with an offering of Notes
to an Agent as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent as to the matters
covered thereby on the date of such certificate and at each Representation Date
subsequent thereto.
2. Purchases as Principal; Solicitations as Agent.
(a) No Agent shall have any obligation to purchase Notes from the
Company as principal, but an Agent may agree from time to time to purchase Notes
as principal. Each sale of Notes to an Agent as principal shall be made in
accordance with the terms of this Agreement, except as otherwise agreed by such
Agent and the Company, and, if requested by such Agent, the Company will enter
into a Terms Agreement that will provide for the sale of such Notes to and the
purchase thereof by such Agent. Each Terms Agreement will be either (i)
substantially in the form of Exhibit A (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 Sections 5 and 6 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).
8
<PAGE> 9
Each purchase of Notes by an Agent as principal, unless otherwise
agreed, shall be at a discount from the principal amount of each such Note
equivalent to the applicable commission set forth in Subsection (b) hereof. Each
Agent may engage the services of any other broker or dealer in connection with
the resale of any Notes purchased by such Agent as principal and may allow all
or any portion of the discount received in connection with such purchases from
the Company to such brokers and dealers.
(b) If agreed upon by an Agent and the Company, such Agent, acting
solely as agent for the Company and not as principal, will solicit purchasers of
the Notes. In connection with the Agents' actions as agents hereunder, each
Agent agrees to use reasonable best efforts to solicit offers to purchase Notes
from the Company upon the terms and conditions set forth in the Prospectus (and
any supplement thereto) and in the Administrative Procedures. In soliciting
offers to purchase the Notes as agents, each Agent is acting solely as an agent
for the Company, and not as a principal, and does not assume any obligation
toward or relationship of agency or trust with any purchaser of Notes. Each
Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by such Agent and accepted by the Company, but no Agent shall have any liability
to the Company in the event any such purchase is not consummated for any reason.
If the Company shall default in its obligations to deliver Notes to a purchaser
whose offer it has accepted, the Company shall hold each Agent harmless against
any loss, claim, damage or liability arising from or as a result of such default
and shall, in particular, pay to each Agent the commission each Agent would have
received had such sale been consummated.
The Company may appoint additional agents in connection with the
offering of the Notes; provided that (i) the Company promptly notifies each
Agent of such appointment and (ii) the commission paid to any such additional
agent with respect to the sale of Notes by the Company as a result of a
solicitation made by such additional agent is the same as that percentage
specified below of the aggregate principal amount of such Notes sold by the
Company; and provided further that, unless the appointment of such additional
agent is expressly limited to the solicitation of offers to purchase a specified
principal amount of Notes on specified terms, such additional agent enters into
an agreement with the Company making such agent an Agent under this Agreement or
enters into an agreement with the Company on terms which are substantially
similar to those contained in this Agreement, which agreement shall include
appropriate changes to reflect the arrangements between the Company and such
additional agent. The Company may from time to time offer Notes for sale
otherwise than through an Agent.
No Agent is authorized to appoint sub-agents with respect to Notes sold
through an Agent as agent.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes (other than Notes held by the Agents
that were purchased from the Company as principal). As 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
9
<PAGE> 10
amendment or supplement providing solely for a change in the interest rates of
the Notes or for a change the Agents deem to be immaterial), no Agent shall be
required to resume soliciting offers to purchase Notes until the Company has
delivered such certificates, opinions and letters an Agent may request. The
Company also reserves the right to sell Notes directly to purchasers in those
jurisdictions in which it is authorized to do so.
Except as otherwise agreed, the Company agrees to pay to each Agent, as
consideration for the sale of each Note resulting from a solicitation made or an
offer to purchase received by such Agent, a commission in the form of a discount
from the purchase price of such Note equal to the following percentage of the
principal amount of such Note:
<TABLE>
<CAPTION>
Term* Commission Rate
---- ---------------
<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
Greater than 30 years To be agreed to by the Company and each
Agent at time of sale.
</TABLE>
- ---------------
* Or Initial Rate Period, in the case of Remarketed Notes.
Each Agent shall communicate to the Company, orally or in writing, each
offer to purchase Notes received by an Agent as agent that in such Agent's
judgment should be considered by the Company. The Company shall have the sole
right to accept offers to purchase Notes and may reject any offer in whole or in
part. Each Agent shall have the right to reject any offer to purchase Notes that
such Agent considers to be unacceptable, and any such rejection shall not be
deemed a breach of such Agent's agreements contained herein.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser against payment therefor
in immediately available funds. In the event that a purchaser shall fail either
to accept delivery of or to make payment for a Note 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.
10
<PAGE> 11
(c) The Company and each Agent agree that any Notes purchased by 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 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.
11
<PAGE> 12
(c) The Company will deliver to the Agents as many signed and conformed
copies of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus as the Agents shall reasonably request so long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(d) The Company will prepare, with respect to any Notes to be sold to
or through an Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by such Agent and will file
such Pricing Supplement pursuant to Rule 424(b)(3) under the Securities Act not
later than the close of business of the SEC on the second business day after the
date on which such Pricing Supplement is first used.
(e) Except as otherwise provided in subsection (m) of this Section, if
at any time during the term of this Agreement any event shall occur or condition
exist as a result of which it is necessary, in the reasonable opinion of your
counsel or counsel for the Company, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of either such counsel, to amend or
supplement the Registration Statement or the Prospectus in order to comply with
the requirements of the Securities Act or the regulations to the Securities Act,
immediate notice shall be given, and confirmed in writing, to each Agent to
cease the solicitation of offers to purchase the Notes in such Agent's capacity
as agent and to cease sales of any Notes an Agent may then own as principal
pursuant to an agreement by such Agent to purchase Notes as principal, and the
Company will promptly prepare and file with the SEC such amendment or
supplement, whether by filing documents pursuant to the Exchange Act, the
Securities Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and Prospectus
comply with such requirements.
(f) Except as otherwise provided in subsection (m) of this Section, if
reasonably requested by an Agent, on or prior to the date on which there shall
be released to the general public interim financial statement information
related to the Company with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with respect to any
fiscal year, the Company shall, to the extent lawful under the rules and
regulations of the SEC, 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, to the extent lawful under the rules and
regulations of the SEC, such information to such Agent, confirmed in writing,
and shall
12
<PAGE> 13
cause the Registration Statement and the Prospectus to be amended or
supplemented, 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 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 (which consent will not be
unreasonably withheld), offer or sell, or enter
13
<PAGE> 14
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 bank borrowings 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;
(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;
14
<PAGE> 15
(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 (exclusive of any amendment thereto filed
with the SEC after the date of the Terms Agreement (in the case of a
purchase of Notes by an Agent as principal) or after the date upon
which the purchaser became obligated to purchase the Notes (in the case
of a purchase of Notes through an Agent as agent)) that, in each
Agent's reasonable judgment, is material and adverse and that makes it,
in each Agent's reasonable judgment, impracticable to market the Notes
except, in the case of any purchase of Notes, as disclosed to each
Agent in writing by the Company before an Agent or such other purchaser
accepted the offer to purchase such Notes.
(ii) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the SEC; and
all requests for additional information on the part of the SEC shall
have been complied with to each Agent's reasonable satisfaction.
15
<PAGE> 16
(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 or the
National Association of Securities Dealers, Inc., (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 or Texas 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) outbreak or escalation of hostilities or
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 on the terms and in the manner contemplated in
the Prospectus, as amended or supplemented, 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 that 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 Baker Botts L.L.P,
special counsel for the Company (as to (vii), (viii), (xi), (xii),
(xiv) and (xv) below) to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Nevada, with full corporate power and authority
to own its properties and conduct its business as described in
the Prospectus and to perform its obligations under this
Agreement;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, as amended or supplemented, and all
of the outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid
and nonassessable;
16
<PAGE> 17
(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 or organization, as the
case may be, except where the failure to be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; 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, individually or in the
aggregate, could reasonably be expected to 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.
(vii) The Notes, in the form(s) certified by the Company
as of the date hereof, will be duly authorized for issuance,
offer and sale pursuant to this Agreement when the Pricing
Committee of the Board of Directors of the Company has fixed
and determined the terms of the Notes to be issued and sold
and the Notes, when authorized as aforesaid 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
17
<PAGE> 18
Company entitled to the benefits provided by the applicable
Indenture and enforceable against the Company in accordance
with their respective terms, subject to the Enforceability
Exceptions (as hereinafter defined); and the Notes and the
Indentures conform in all material respects to the
descriptions thereof under the captions "Description of Notes"
and "Description of Debt Securities" in the Prospectus;
(viii) Each of the Indentures has been duly authorized,
executed and delivered by the Company and (assuming the due
authorization, execution and delivery of each such Indenture
by the Trustee) constitutes a valid and legally binding
instrument enforceable against the Company in accordance with
its terms, subject to the Enforceability Exceptions; and each
of the Indentures has been 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 violate 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, except for any such violation, breach
or default that would not have a material adverse effect on
the Company and its subsidiaries taken as a whole, 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 such counsel's knowledge, no consent, approval,
authorization, order, registration or qualification of or with
any court or governmental agency or body of the United States
of America or the States of Texas or Nevada 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
or through each Agent;
18
<PAGE> 19
(xii) To such counsel's knowledge, no proceedings for a
stop order with respect to the Registration Statement 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) The Registration Statement and the Prospectus, as
amended or supplemented, if applicable (except for (1) the
financial statements (including the notes thereto and the
auditors' reports thereon) included or incorporated by
reference therein, and (2) the other financial information
included or incorporated by reference therein, as to which
such counsel need express no opinion) appear on their face to,
comply as to form in all material respects with the Securities
Act and the rules and regulations of the SEC thereunder; and
(xv) Such counsel shall also state, in a separate
paragraph, the following: "such counsel has participated in
conferences with officers and other representatives of the
Company, representatives of the independent public accountants
of the Company and your representatives at which the contents
of the Registration Statement and the Prospectus and related
matters were discussed. Although such counsel did not
independently verify, is not passing upon, and does not assume
any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement and
the Prospectus or the responsiveness of such statements to
legal requirements (except to the extent stated in the last
clause of paragraph (vii) and paragraph (xiv) above), such
counsel advises you that, on the basis of the foregoing
(relying in part as to materiality upon officers and other
representatives of the Company), no facts have
19
<PAGE> 20
come to such counsel's attention which lead such counsel to
believe that the Registration Statement (other than (i) the
financial statements (including the notes thereto and the
auditors' reports thereon) included therein, and (ii) the
other financial information included therein, as to which such
counsel has not been asked to comment), as of the time 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), contained any untrue statement of
a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (other than (i)
the financial statements (including the notes thereto and the
auditors' report thereon) included therein and (ii) the other
financial information included therein, as to which such
counsel has not been asked to comment), as of the issue date
thereof and as of the date of such counsel's letter, contained
or contains any untrue statement of a material fact or omitted
or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading."
"Enforceability Exceptions" shall mean (i) applicable
bankruptcy, receivership, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer and other similar laws relating to or affecting
the enforcement of the rights and remedies of creditors or parties to executory
contracts generally; (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity) and the
exercise of equitable powers by a court of competent jurisdiction (and no
opinion need be given as to the availability of any specific equitable relief or
equitable remedies); and (iii) applicable law or public policy limiting the
enforcement of provisions providing for the indemnification of a party.
(B) The opinion, dated as of such date, of Milbank, Tweed,
Hadley & McCloy LLP, your special counsel, covering the incorporation
of the Company, the validity of the Remarketing Agreement, if
applicable, 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
20
<PAGE> 21
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 reasonably 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
reasonably satisfactory in form and substance to each Agent and its counsel.
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, as amended or supplemented, any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus, as amended
or supplemented, there shall not have been any material change in the capital
stock, outstanding interests (other than through exercise of employee stock
options) or long-term debt of the Company and any of its subsidiaries, taken as
a whole (other than borrowings and repayments made in the ordinary course of
business), or any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position, stockholders
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or delivery of the Notes on the terms and in the manner
contemplated in the Prospectus, as amended or supplemented;
(g) Subsequent to the date of any Terms Agreement relating to the
Notes, the rating assigned by any "nationally recognized statistical rating
organization," as that 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;
(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 generally on or by, as the case may be, the New
York Stock Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc.; (ii) a suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iii) a declaration
of a general moratorium on commercial banking activities in New York or Texas 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
21
<PAGE> 22
which the Notes are denominated or payable or (iv) outbreak or escalation of
hostilities or change in financial markets or any calamity or crisis that, in
the judgment of any Agent or Agents that is or are a party or parties to such
Term Agreement, is material and adverse and, in the case of any of the events
described in these clauses (h)(i) through (iv), such event, singly or together
with any other such event, makes it in the judgment of any such Agent or Agents,
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.
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, redemption provisions, amortization schedules, maturities or other
similar terms offered on the Notes (whether pursuant to a term sheet or
otherwise), or for a change the Agents deem to be immaterial, and, unless the
Agents shall otherwise specify, other than by an amendment or supplement which
relates exclusively to an offering of debt securities other than the Notes) or
(ii) there is filed with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating exclusively to
the issuance of debt securities under the Registration Statement, unless the
Agents shall otherwise specify) or (iii) (if required pursuant to the terms of
an agreement by an Agent to purchase Notes as principal) the Company sells Notes
to an Agent pursuant to an agreement by such Agent to purchase Notes as
principal or (iv) the Company sells Notes in a form not previously certified to
the Agents by the Company, the Company shall furnish or cause to be furnished to
each Agent forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to each Agent to the
effect that the statements contained in the certificate referred to in Section
5(c) hereof which were last furnished to such Agent are true and correct at the
time of such amendment, supplement, filing or sale, as the case may be, as
though made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(c), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(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, redemption provisions,
amortization schedules, maturities or other similar terms offered on the Notes
(whether pursuant to a term sheet or otherwise) 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
reasonably request, as a result of any material development described in such
reports), or (iii) (if required pursuant to the terms of an agreement by an
Agent to purchase
22
<PAGE> 23
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 Baker Botts L.L.P., special counsel for the Company or other
counsel satisfactory to the Agents, and an opinion of Raymond G. Smerge,
Executive Vice President, Chief Legal Officer and Secretary of the Company,
dated the date of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form and substance satisfactory to the Agents, of the same tenor as their
respective opinions referred to in Section 5(b)(A) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion; or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agents with a letter to the effect that the Agents may rely on such last opinion
to the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance).
(c) Each time that (i) the Registration Statement or the Prospectus
shall be amended or supplemented to include additional financial information
unless the Agents shall otherwise specify, other than an amendment or supplement
which relates exclusively to an offering of debt securities other than the Notes
or there is filed with the SEC any document incorporated by reference into the
Prospectus which contains additional financial information or (ii) (if required
pursuant to the terms of any agreement by an Agent to purchase Notes as
principal) the Company sells Notes to an Agent pursuant to any agreement by such
Agent to purchase Notes as principal, the Company shall cause its independent
public accountants forthwith to furnish each Agent a letter, dated the date of
effectiveness of such amendment, supplement or document with the SEC, or the
date of such sale, as the case may be, in form satisfactory to each Agent, of
the same tenor as the letter referred to in Section 5(d) hereof but modified to
relate to the Registration Statement and the Prospectus, as amended and
supplemented to the date of such letter.
7. Indemnification.
(a) Indemnification of the Agent. The Company agrees to indemnify and
hold each Agent and each person, if any, who controls each Agent within the
meaning of Section 15 of the Securities Act harmless as follows:
(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
23
<PAGE> 24
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 such Agent
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. Upon such notice, an
indemnifying party may participate at its own expense and, to the extent that it
wishes, jointly with any other indemnifying party, similarly notified, and may
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. In any proceeding where the indemnifying party has assumed
the defense thereof, the indemnifying party shall be liable to the indemnified
party for any legal or other expenses previously incurred by such indemnified
party in connection with the defense thereof and for reasonable costs of
investigation subsequently incurred. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual differing interests between them. 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
24
<PAGE> 25
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 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
25
<PAGE> 26
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 referred to in paragraph (a) above
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 or the National
Association of Securities Dealers, Inc., (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
or Texas 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 judgment, impracticable or
inadvisable to proceed with the public offering or the delivery of the Notes on
the terms and in the manner contemplated by the Prospectus, as amended or
supplemented, 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 Section,
the term "Prospectus" means the Prospectus in the form first provided to each
Agent for use in confirming sales of the related Notes.
26
<PAGE> 27
(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
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.
27
<PAGE> 28
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:
Banc One Capital Markets, Inc.
1 Bank One Plaza, Suite IL1-0595
Chicago, Illinois 60670
Attention: Corporate Securities Structuring
Telephone: 312-732-8270
Telecopy: 312-732-4773
Banc of America Securities LLC
100 North Tyron Street
Mail Code NC1-007-07-01
Charlotte, North Carolina 28255
Attention: Product Management/Medium Term Notes
Telephone: 704-386-7800
Telecopy: 704-388-9939
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017-2070
Attention: Medium-Term Note Desk
Telephone: 212-834-4421
Telecopy: 212-834-6081
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium Term Finance
Telephone: 212-325-7198
Telecopy: 212-325-8183
Morgan Stanley & Co., Incorporated
1585 Broadway
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telephone: 212-761-2000
Telecopy: 212-761-0780
28
<PAGE> 29
with a copy to:
Morgan Stanley & Co., Incorporated
1585 Broadway
29th Floor
New York, N.Y. 10036
Attention: Peter Cooper, Investment Banking Information Center
Telephone: 212-761-8385
Telecopy: 212-761-0164
Warburg Dillon Read LLC
677 Washington Blvd.
Stamford, CT 06901
Attention: Debt Syndicate
Telephone: 203-719-1342
Telecopy: 203-719-7139
or, if sent to the Company, will be mailed, delivered or telefaxed and
confirmed to it at:
Centex Corporation,
2728 North Harwood Street,
Dallas, Texas 75201,
Attention: Vicki Roberts
Telephone: 214-981-6533
Telecopy: 214-981-6858
13. Successors. This Agreement and any Terms Agreement will inure to
the benefit of and be binding upon each of the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any Terms Agreement or any provision herein or therein contained. This
Agreement and any applicable Terms Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
14. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
15. Applicable Law. This Agreement and all the rights and obligations
of the parties shall be governed by and construed in accordance with the laws of
the State of New York applicable to agreements made and to be performed in such
State.
16. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
29
<PAGE> 30
If the foregoing is in accordance with your respective understandings
of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this instrument and your respective acceptances shall represent a
binding agreement between the Company and each Agent.
Very truly yours,
CENTEX CORPORATION
By: /s/ Vicki A. Roberts
----------------------------------
Title: Vice President and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BANC ONE CAPITAL MARKETS, INC.
By /s/ Katherine Cokic
----------------------------------
Title: Vice-President
BANC OF AMERICA SECURITIES LLC
By /s/ Gennell Jefferson
----------------------------------
Title: Principal
CHASE SECURITIES INC.
By /s/ Huw Richards
----------------------------------
Title: Vice-President
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Helena M. Willner
----------------------------------
Title: Director
MORGAN STANLEY & CO., INCORPORATED
By /s/ Harold J. Hendershot III
-----------------------------------
Title:
WARBURG DILLON READ LLC
By /s/ Tom Hartfield
----------------------------------
Title:
30
<PAGE> 31
EXHIBIT A
CENTEX CORPORATION
SENIOR MEDIUM-TERM NOTES, SERIES C
TERMS AGREEMENT
, 2000
---------------
Centex Corporation
2728 North Harwood Street
Dallas, Texas 75201
Attention:
Re: Distribution Agreement dated January __, 2000
(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:
<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
January __, 2000, 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:
2
<PAGE> 33
EXHIBIT B
CENTEX CORPORATION
SUBORDINATED MEDIUM-TERM NOTES, SERIES C
TERMS AGREEMENT
, 20__
---------
Centex Corporation
2728 North Harwood Street
Dallas, Texas 75201
Attention:
Re: Distribution Agreement dated January __, 2000
(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:
<PAGE> 34
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
January __, 2000, 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:
2
<PAGE> 35
EXHIBIT C
CENTEX CORPORATION
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE, FLOATING RATE AND REMARKETED
MEDIUM TERM NOTES, SERIES C
(DATED AS OF JANUARY 27, 2000)
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 Banc One
Capital Markets, Inc., Banc of America Securities LLC, Chase Securities Inc.,
Credit Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated and
Warburg Dillon Read LLC (individually, an "Agent" and collectively, the
"Agents"), pursuant to a Distribution Agreement dated January 27, 2000 (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 an Indenture
Supplement No. 3 thereto dated as of January 27, 2000 (the "Senior Indenture"),
and the Subordinated Notes will be issued under an Indenture dated as of March
12, 1987, as supplemented by an Indenture Supplement No. 6 thereto dated as of
January 27, 2000 (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.
A Registration Statement on Form S-3 (No. 333-94221) (the "Registration
Statement"), with respect to debt securities, including the Notes, has been
filed under the Securities Act of 1933, as amended (the "1933 Act"), with the
Securities and Exchange Commission (the "Commission") and
<PAGE> 36
declared effective on January 24, 2000. The most recent base Prospectus included
in the Registration Statement, as supplemented by the Prospectus Supplement
dated January 27, 2000 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> 37
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 Agent to investors
and other purchasers (i) at a fixed
3
<PAGE> 38
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 600 Travis Street, Suite 1150,
Houston, Texas 77002, Attention: Gary Jones,
telecopier: (713) 216-1812, 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 Banc One Capital Markets, Inc.,
to: 1 Bank One Plaza, Suite IL1-0595, Chicago,
Illinois 60670, Attention: Evonne Taylor,
telecopier: (312) 732-4773; if to Banc of
America 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 Chase Securities Inc., to: 270
Park Avenue, 8th Floor, New York, New York
10017-2070, Attention: Medium-Term Note Desk,
telecopier (212)834-6081; 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 & Co. Incorporated, to: 1585
Broadway, 2nd Floor, New York, New York 10036,
Attention: Medium Term Note Trading Desk,
telecopier: (212) 761-8483; if to Warburg
Dillon Read LLC, to: 535 Madison Avenue, New
York, New York
4
<PAGE> 39
10022, Attention: Joseph Moore, telecopier:
(203) 719-0495. 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 or
5
<PAGE> 40
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> 41
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 Bring-Down Letter of Representation, dated January 27, 2000,
relating to the issuance of Senior Notes and Subordinated Notes, both from the
Company and the Trustee to DTC (collectively, the "Letters of Representations"),
and a Certificate Agreement, dated December 2, 1998, between the Trustee and
DTC, as amended (the "Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Rate, Default Rate, Interest
Payment Dates, redemption and/or repayment
terms, if any, and Stated Maturity Date
(collectively, the "Fixed Rate Terms") will be
represented initially by a single Global Note.
All Floating Rate Notes issued in book-entry
form having the same Original Issue Date,
Interest Category, formula for the calculation
of interest (including the Interest Rate Basis
or Bases, which may be the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Eleventh
District Cost of Funds Rate, the Federal Funds
Rate, LIBOR, the Prime Rate or the Treasury
Rate or any other interest rate basis or
formula, and Spread and/or Spread Multiplier,
if any), Day Count Convention, Initial Interest
Rate, Default Rate, Index Maturity (if
applicable), Minimum Interest Rate, if any,
Maximum Interest Rate, if any, redemption
and/or repayment terms, if any, Interest
Payment Dates, Initial Interest Reset Date,
Interest Reset Dates and Stated Maturity Date
(collectively, the "Floating Rate Terms") will
be represented initially by a single Global
Note.
For other variable terms with respect to the
Fixed Rate Notes and Floating Rate Notes, see
the Prospectus and the applicable Pricing
Supplement.
All Remarketed Notes issued having the same
Agent, Original Issue Date, Initial Interest
Rate, Initial Interest Rate Period and Stated
Maturity Date and other terms will be
represented initially by a single Global Note
in fully registered form without coupons. All
such initial terms will be recorded by the
7
<PAGE> 42
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.
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
8
<PAGE> 43
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 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
9
<PAGE> 44
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 Settlement Procedures with regard to each Note
Procedures: in book-entry form purchased by an Agent, as
principal, or sold by an Agent, as agent of the
Company, will be as follows:
A. The Offering Agent will advise the Company
by telephone, confirmed by facsimile or
appropriate electronic media, of the
following Settlement information:
1. Principal amount of the Note.
10
<PAGE> 45
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:
(i) Initial Interest Rate.
(ii) Initial Interest Rate
Period.
(iii) First Interest Rate
Adjustment Date.
11
<PAGE> 46
(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. Repayment provisions, if any.
13. Default Rate, if any.
14. Such other information specified with
respect to such Note.
12
<PAGE> 47
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
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
13
<PAGE> 48
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 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.
14
<PAGE> 49
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 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:
SETTLEMENT
PROCEDURE TIME
A. 11:00 a.m. on the trade date or
within one hour following the trade
B. 12:00 noon on the trade date or
within one hour following the trade
C. No later than the close of business
on the Business Day prior to the
trade date, in the case of pending
instructions, and otherwise
15
<PAGE> 50
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
Settlement Procedure H is subject to extension
in accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the Settlement Date.
If settlement of a Note is rescheduled or
canceled, the Trustee will deliver to DTC,
through DTC's Participant Terminal System, a
cancellation message to such effect by no later
than 5:00 p.m., New York City time, on the
Business Day immediately preceding the
scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver
order with respect to a Note pursuant to
Settlement Procedure F, the Trustee may deliver
to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal
message instructing DTC to debit such Note to
the participant account of the Trustee
maintained at DTC. DTC will process the
withdrawal message, provided that such
participant account contains a principal amount
of the Notes that is at least equal to the
principal amount to be debited. If withdrawal
messages are processed with respect to all the
Notes evidenced by a Global Note, the Trustee
will mark such Global Note "canceled", make
appropriate entries in its records and send
certificate of destruction of such canceled
Global Note to the Company. The CUSIP number
assigned to such Global Note shall, in
accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If withdrawal messages are
processed with respect to a portion of the
Notes represented by a single Global Note, the
Trustee will exchange such Global Note for two
Notes, one of which shall represent the Notes
for which withdrawal messages are processed and
16
<PAGE> 51
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> 52
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.
(v) Initial Interest Reset Date
and Interest Reset Dates.
18
<PAGE> 53
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
6. Price to public of such Certificated
Note (or whether such Note is being
offered at varying prices relating to
prevailing market prices at time of
resale as determined by the Offering
Agent).
7. Trade Date.
8. Settlement Date (Original Issue Date).
9. Stated Maturity Date.
10. Redemption provisions, if any.
11. Repayment provisions, if any.
12. Default Rate, if any.
13. Net proceeds to the Company.
14. The Offering Agent's discount or
commission.
15. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
16. Such other information specified with
respect to such Note (whether by
Addendum or otherwise).
B. After receiving such settlement information
from the Offering Agent, the Company will
advise the Trustee of the above settlement
information by facsimile transmission
confirmed by telephone. The Company will
cause the Trustee to issue, authenticate
and deliver the Certificated Note.
19
<PAGE> 54
C. The Trustee will complete the Certificated
Note in the form approved by the Company
and the Offering Agent, and will make three
copies thereof (herein called "Stub 1",
"Stub 2" and "Stub 3"):
1. Certificated Note with the Offering
Agent's confirmation, if traded on a
principal basis, or the Offering
Agent's customer confirmation, if
traded on an agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the Trustee
will deliver the Certificated Note and Stub
2 thereof to the Offering Agent at the
following applicable address: if to Banc
One Capital Markets, Inc., to: 1 Bank One
Plaza, Suite IL1-0595, Chicago, Illinois
60670, Attention: Evonne Taylor,
telecopier: (312) 732-4773; if to Banc of
America 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 Chase
Securities Inc., to: 55 Walker Street, Room
226, New York, New York 10041, Attention:
Window 17 or 18, telecopier (212) 638-5618;
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 & Co. Incorporated, to: Bank
of New York, Dealer Clearance Department, 1
Wall Street, 3rd Floor, Window 3B, New
York, New York 10005, Attention: For the
account of Morgan Stanley & Co.
Incorporated; if to Warburg Dillon Read
LLC, to: 535 Madison Avenue, New York, New
York 10022, Attention: Joseph Moore,
telecopier: (203) 719-0495, and the Trustee
will keep Stub 1. The Offering Agent will
acknowledge receipt of the Certificated
Note through a broker's receipt and will
keep Stub 2. Delivery of the Certificated
Note will be made only against such
acknowledgment of receipt. Upon
determination that the Certificated Note
has been authorized, delivered and
completed as aforementioned, the Offering
Agent will wire the net proceeds of the
20
<PAGE> 55
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.
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
21
<PAGE> 56
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> 57
PART IV: PROCEDURES FOR REMARKETING OF REMARKETED NOTES
Conversions: As long as the Remarketed Notes are in the
Short Term Rate Mode or the Long Term Rate
Mode, the Company may change the Interest Rate
Mode or Interest Rate Period at its option in
the manner described in the Remarketed Notes.
Any Conversion Notice or Floating Interest Rate
Notice must be received by the Trustee and the
Remarketing Agent from the Company in the
manner and within the time period prescribed in
the Remarketed Notes.
With respect to proposed conversions into a
Long Term Rate Period, notice of revocation or
change by the Company must be received by the
Trustee and the Remarketing Agent prior to 4:00
p.m., New York City time, on the third Business
Day preceding the Interest Rate Adjustment
Date. With respect to proposed conversions into
a Short Term Rate Period, notice of revocation
or change by the Company must be received by
the Trustee and the Remarketing Agent prior to
9:30 a.m., New York City time, on the Interest
Rate Adjustment Date.
Procedures: Remarketing 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> 58
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> 59
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 principal
amount of tendered Remarketed Notes that
such
25
<PAGE> 60
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.
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)
26
<PAGE> 61
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 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
27
<PAGE> 62
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> 63
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> 64
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> 65
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 also state that the Beneficial Owners
of each such Remarketed Note will
31
<PAGE> 66
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, 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
32
<PAGE> 67
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 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
33
<PAGE> 68
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 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
34
<PAGE> 69
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 Notes: immediately available funds from the Company
will pay the principal of, premium, if any, and
interest on, each Certificated Note on the
Maturity Date in immediately available funds.
All interest payments on a Certificated Note,
other than interest due on the Maturity Date,
will be made by check mailed to the address of
the person entitled thereto as such address
shall appear in the Security Register;
provided, however, that Holders of $10,000,000
or more in aggregate principal amount of
Certificated Notes (whether having identical or
different terms and provisions) shall be
entitled to receive such interest payments by
wire transfer of immediately available funds if
appropriate wire transfer instructions have
been received in writing by the Trustee not
less than 15 calendar days prior to the
applicable Interest Payment Date.
The Trustee will provide monthly to the Company
a list of the principal, premium, if any, and
interest to be paid on Certificated Notes
maturing in the next succeeding month. The
Trustee will be responsible for withholding
taxes on interest paid as required by
applicable law.
Certificated Notes presented to the Trustee on
the Maturity Date for payment will be canceled
by the Trustee. All canceled Certificated Notes
held by the Trustee shall be destroyed, and the
Trustee shall furnish to the Company a
certificate with respect to such destruction.
Payments of Principal and Upon notice to the Company by a Remarketing
Interest (Special Mandatory Agent of a failed remarketing of a 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
35
<PAGE> 70
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> 71
SCHEDULE I
SUBSIDIARIES OF CENTEX CORPORATION
THAT ARE NOT DIRECTLY OR INDIRECTLY WHOLLY-OWNED
<TABLE>
<CAPTION>
[CONFIRM]
Percent of Outstanding Equity Interests Owned
Subsidiary Directly or Indirectly by Centex Corporation
- ---------- --------------------------------------------
<S> <C>
Advanced Protection Systems, Inc. 84.75%
Cavco Industries, LLC 80.50%
CC Rowlett MOB, LLC 50.00%
Centex-Aim Construction, L.L.C. 80.00%
Centex Concord Property Management, L.L.C. 50.00%
Centex Construction Products, Inc. [62.60%]
Centex Development 1, LLC 98.00%
Centex Development Holding Company UK Limited 93.50%
Fairclough Homes Group Limited 93.50%
Fairclough Homes Limited 93.50%
Fairpine Limited 50.00%
Viewton Properties Limited 50.00%
Centex Homes International B.V. 93.50%
Centex Latin America, Inc. 95.00%
900 Development Corporation 95.00%
Inverloma, S. de R.L. de C.V. 30.00%
Centex Rodgers No. 1, LLC 99.00%
Centex-Rooney/HLM Correctional Design/Builders, L.C. 70.00%
Centex-Rooney National Development, J.V. 75.00%
Centex-Rooney/RS&H Design Builders, L.C. 90.00%
Centex-Rooney Schenkel Shultz Design/Builders, L.C. 50.00%
Centex Seismic Services, Inc. 95.00%
Centex Urban LLC 95.00%
Charles Church Homes Limited 50.00%
Copper Canyon Development Company LLC 45.70%
CSL Agnews Development, LLC 33.33%
GV Northfield I LLC 50.00%
M&W General Construction Company 49.00%
Nomas Corp. 49.90%
Nomas Development Company, LLC 49.90%
ST Lending, Inc. 49.90%
Parcel E, LLC 75.00%
PDG/Prescott Development Group, L.L.C. 50.00%
Rural Southwest Housing Company, L.L.C. 50.00%
Seabreeze, LLC 66.70%
Sun Built Development, LLC 49.00%
The Student Communities Group, L.C. 50.00%
Wayne Homes, LLC 97.00%
Arlington Mortgage, Inc. 97.00%
Westfest, LLC 50.00%
</TABLE>
<PAGE> 72
<TABLE>
<S> <C>
Windemere BLC Land Company 33.33%
Wholly-owned subsidiaries of Centex Construction Production, 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
Galtco, Inc.
CCP Land Company
Centex Cement Corporation
</TABLE>
2
<PAGE> 1
EXHIBIT 4.2
CENTEX CORPORATION
Issuer
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
Trustee
INDENTURE SUPPLEMENT NO. 3
Dated as of January 27, 2000
to
INDENTURE
Dated as of October 1, 1998
Senior Medium-Term Notes, Series C
<PAGE> 2
INDENTURE SUPPLEMENT NO. 3 ("Indenture Supplement"), dated as of
January 27, 2000, between CENTEX CORPORATION, a Nevada corporation (together
with its successors and assigns as provided in the Indenture referred to below,
the "Company"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national
banking association (together with its successors in trust thereunder as
provided in the Indenture referred to below, the "Trustee"), as trustee under an
Indenture dated as of October 1, 1998 (the "Indenture").
PRELIMINARY STATEMENT
Section 2.02 of the Indenture provides, among other things, that the
Company may, when authorized by its Board of Directors, and the Trustee may at
any time and from time to time, enter into a series supplement to the Indenture
for the purpose of authorizing one or more Series of Senior Debt Securities and
to specify certain terms of each such Series of Senior Debt Securities. The
Board of Directors of the Company has duly authorized the creation of a Series
of Senior Debt Securities to be known as the Company's Senior Medium-Term Notes,
Series C (the "Notes"), and the Company and the Trustee are executing and
delivering this Indenture Supplement in order to provide for the issuance of the
Notes.
ARTICLE ONE
Definitions
Except to the extent such terms are otherwise defined in this Indenture
Supplement or the context clearly requires otherwise, all terms used in this
Indenture Supplement which are defined in the Indenture or the form of Fixed
Rate Note or Floating Rate Note attached hereto as Exhibits A and B,
respectively, either directly or by reference therein, shall have the meanings
assigned to them therein.
As used in this Indenture Supplement, the following terms shall have
the following meanings:
AMORTIZED FACE AMOUNT:
The term "Amortized Face Amount" of an Original Issue Discount Note, as
of the date that (i) the principal amount of such Note is to be repaid prior to
its Stated Maturity, whether upon declaration of acceleration, call for
redemption, repayment at the option of the Holder or otherwise, or (ii) any
consent, notice, request, direction, waiver or suit by the Noteholders shall be
deemed to be given, made or commenced under this Indenture, shall mean the
principal amount of such Note multiplied by its Issue Price plus the portion of
the difference between the dollar amount thus obtained and the principal amount
of such Note that has accreted at the Yield to maturity of such Note (computed
in accordance with generally accepted United States bond yield computation
principles) to such date, but in no event shall the Amortized Face Amount of an
Original Issue Discount Note exceed its principal amount stated in the
applicable Company Order.
AMORTIZING NOTE:
The term "Amortizing Note" shall mean a Note for which payments of
principal of and interest on such Note are made in installments over the life of
such Note, and unless otherwise specified in the applicable Company Order,
payments with respect to an Amortizing Note shall be applied first to interest
due and payable thereon and then to the reduction of the unpaid principal amount
thereof.
-2-
<PAGE> 3
AUTHORIZED AGENT:
The term "Authorized Agent" shall mean an agent of the Company
designated by an Officers' Certificate to give to the Trustee the information
specified in clause (a) of "Company Order" for the issuance of a Note.
BASIS POINT:
The term "Basis Point" shall mean one-one hundredth of a percentage
point.
CD RATE:
The term "CD Rate" shall mean, with respect to any CD Rate Interest
Determination Date, the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified in the applicable
Pricing Supplement as published in H.15(519) (as hereinafter defined) under the
heading "CDs (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 "CDs (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 CMT Rate Interest
Determination Date, 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
-3-
<PAGE> 4
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not so published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in
H.15(519). If such information is not so provided by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
offered rates as of approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date reported, according to their written records,
by three leading primary United States government securities dealers in The City
of New York (which may include the Agents or their affiliates) (each, a
"Reference Dealer") selected by the Calculation Agent (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for the most recently issued
direct noncallable fixed rate obligations of the United States ("Treasury
Notes") with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent is unable to obtain
three such Treasury Note quotations, the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offered
rates as of approximately 3:30 P.M., New York City time, on such CMT Rate
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offered rates obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided, however, that if fewer than
three Reference Dealers so selected by the Calculation Agent are quoting as
mentioned herein, the CMT Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original maturity as described
in the second preceding sentence have remaining terms to maturity equally close
to the Designated CMT Maturity Index, the Calculation Agent will obtain
quotations for the Treasury Note with the shorter remaining term to maturity.
CMT RATE INTEREST DETERMINATION DATE:
The term "CMT Rate Interest Determination Date" shall mean any Interest
Determination Date relating to a Floating Rate Note for which the interest rate
is determined with reference to the CMT Rate.
CALCULATION AGENT:
The term "Calculation Agent" for a particular Floating Rate Note shall
mean the Trustee, unless otherwise specified in the applicable Company Order.
-4-
<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
-5-
<PAGE> 6
to the Trustee, to authenticate a Note and to make it available for delivery,
and specifying for such Note the following information:
(1) the name of the Person in which a Note to be issued and
authenticated shall be registered;
(2) the address of such Person;
(3) the taxpayer identification number of such Person;
(4) the principal amount of such Note and, if multiple Notes
are to be issued to such Person, the denominations of such Notes;
(5) the Issue Price of such Note;
(6) the Original Issue Date of such Note;
(7) the date upon which such Note is scheduled to mature and
the Final Maturity Date;
(8) if the Note is to be redeemable at the option of the
Company, the Initial Redemption Date and the date or dates on which,
and the price or prices at which, such Note is redeemable at the option
of the Company;
(9) if the Note is to be repayable prior to the Stated
Maturity at the option of the Holder, the date or dates on which, and
the price or prices at which, such Note is repayable at the option of
the Holder;
(10) if the Note is a Fixed Rate Note, the rate of interest on
such Note and the Interest Payment Dates, if other than March 1 and
September 1, and the Record Dates, if other than February 15 and August
15;
(11) if the Note is an Original Issue Discount Note, its Yield
to Maturity;
(12) if such Note is an Amortizing Note, a table setting forth
the schedule of dates and amounts of payments of principal of and
interest on such Note or the formula for the amortization of principal
and/or interest;
(13) if the Note is a Reset Note, the Optional Interest Reset
Date and the formula, if any, for resetting the interest rate of a
Fixed Rate Note or the Spread and/or Spread Multiplier of a Floating
Rate Note;
-6-
<PAGE> 7
(14) if the Note is a Floating Rate Note, its:
<TABLE>
<S> <C> <C> <C>
(A) Initial Interest Rate (I) Interest Reset Dates
(B) Interest Rate Basis or Bases (J) Spread
(including any Designated LIBOR
Currency and Designated LIBOR
Page or any Designated CMT
Maturity Index and Designated CMT
Telerate Page)
(C) Index Maturity (K) Spread Multiplier
(D) Interest Determination Dates (L) Maximum Interest Rate
(E) Interest Reset Period (M) Minimum Interest Rate
(F) Initial Interest Reset Date (N) Interest Payment Dates
(G) Fixed Rate Commencement Date, if (O) Record Dates
applicable
(H) Fixed Interest Rate, if applicable
</TABLE>
(15) If such Note is a Floating Rate Note, whether it is a
Regular Floating Rate Note or a Floating Rate/Fixed Rate Note;
(16) whether or not such Note is to be issued in the form of a
Global Note to the Depositary;
(17) the name and address of the Calculation Agent, if other
than the Trustee;
(18) if other than United States dollars or denominations of
$1,000 and integral multiples thereof, the authorized currency or
denominations in which Notes shall be issued; and
(19) all other information necessary for the issuance of such
Note not inconsistent with the provisions of this Indenture; or
(b) confirmation given to the Trustee by an officer of the Company
designated by an Officers' Certificate, by telephone, confirmed by telex or
facsimile or similar writing, of the information given to the Trustee by an
Authorized Agent for the issuance of a Note, and the written order of the
Company to authenticate such Note and to make it available for delivery.
COMPOSITE QUOTATIONS:
The term "Composite Quotations" shall mean the daily statistical
release "Composite 3:30 P.M. Quotations for U. S. Government Securities" or any
successor publication published by the Federal Reserve Bank of New York.
-7-
<PAGE> 8
CONSOLIDATED NET TANGIBLE ASSETS:
The term "Consolidated Net Tangible Assets" shall mean the aggregate
amount of assets included on the most recent consolidated balance sheet of the
Company and its subsidiaries, less applicable reserves and other properly
deductible items and after deducting therefrom (a) all current liabilities and
(b) all goodwill, trade names, trademarks, patents, unamortized debt discount
and expense, and other like intangibles, all in accordance with generally
accepted accounting principles consistently applied.
CUSIP:
The term "CUSIP" shall mean the registered trademark "Committee on
Uniform Securities Identification Procedures" or "CUSIP" and a unique system of
identification of each public issue of a security owned by the American Bankers
Association and administered by Standard and Poor's Corporation, as agent of the
American Bankers Association.
DEPOSITARY:
The term "Depositary" shall mean, unless otherwise specified by the
Company, The Depository Trust Company, New York, New York, or any successor
thereto registered as a Clearing Agency under the Securities and Exchange Act of
1934, as amended, or any successor statute or regulation.
DESIGNATED CMT TELERATE PAGE:
The term "Designated CMT Telerate Page" shall mean the display on
Bridge Telerate, Inc. (or any successor service) on the page specified in the
applicable Pricing Supplement (or any other page as may replace such page on
such service) for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519) or, if no such page is specified in the applicable Pricing
Supplement, page 7052.
DESIGNATED CMT MATURITY INDEX:
The term "Designated CMT Maturity Index" shall mean the original period
to maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified in the applicable Pricing Supplement with respect to which the
CMT Rate will be calculated or, if no such maturity is specified in the
applicable Pricing Supplement, 2 years.
DESIGNATED LIBOR CURRENCY:
The term "Designated LIBOR Currency" shall mean the currency or
composite currency specified in the applicable Company Order as to which LIBOR
shall be calculated or, if no such currency or composite currency is specified
in the applicable Company Order, United States dollars.
DESIGNATED LIBOR PAGE:
The term "Designated LIBOR Page" shall mean either (a) the display on
the Reuters Monitor Money Rates Service (or any successor service) on the page
specified in such Company Order (or any other page as may replace such page on
such service) for the purpose of displaying the London interbank rates of major
banks for the Designated LIBOR Currency (if "LIBOR Reuters" is specified in the
applicable Company Order), or (b) the display on Bridge Telerate, Inc. (or any
successor service) on the page specified in the applicable Company Order (or any
other page as may replace such page on such service) for the purpose of
-8-
<PAGE> 9
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 Eleventh District Cost of Funds Rate Interest Determination Date,
the rate equal to the monthly weighted average cost of funds for the calendar
month immediately preceding the month in which such Eleventh District Cost of
Funds Rate Interest Determination Date falls as set forth under the caption
"11th District" on the display on Bridge Telerate, Inc. (or any successor
service) on page 7058 ("Telerate Page 7058") as of 11:00 A.M., San Francisco
time, on such Eleventh District Cost of Funds Rate Interest Determination Date.
If such rate does not appear on Telerate Page 7058 on such Eleventh District
Cost of Funds Rate Interest Determination Date, then the Eleventh District Cost
of Funds Rate on such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank District that was
most recently announced (the "Index") by the Federal Home Loan Bank of San
Francisco (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.
ELEVENTH DISTRICT COST OF FUNDS RATE INTEREST DETERMINATION DATE:
The term "Eleventh District Cost of Funds 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 Eleventh
District Cost of Funds Rate.
FEDERAL FUNDS RATE:
The terms "Federal Funds Rate" shall mean, with respect to any 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
-9-
<PAGE> 10
Interest Determination Date will be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
FEDERAL FUNDS RATE INTEREST DETERMINATION DATE:
The term "Federal Funds 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 Federal Funds Rate.
FINAL MATURITY DATE:
The term "Final Maturity Date" shall mean the date beyond which the
Stated Maturity of a particular Note may not be extended at the option of the
Company.
FIXED RATE AMORTIZING NOTE:
The term "Fixed Rate Amortizing Note" shall mean a Fixed Rate Note
which is an Amortizing Note.
FIXED RATE NOTE:
The term "Fixed Rate Note" shall mean a Note which bears interest at a
fixed rate (which may be zero in the case of a Zero Coupon Note) specified in
the applicable Company Order.
FLOATING RATE NOTE:
The term "Floating Rate Note" shall mean a Note which bears interest at
a variable rate determined by reference to an interest rate formula, and
includes a CD Rate Note, a CMT Rate Note, a Commercial Paper Rate Note, an
Eleventh District Cost of Funds Rate Note, a Federal Funds Rate Note, a LIBOR
Note, a Prime Rate Note or a Treasury Rate Note.
FUNDED INDEBTEDNESS:
The term "Funded Indebtedness" shall mean notes, bonds, debentures or
other similar evidences of indebtedness for money borrowed which by its terms
matures at or is extendible or renewable at the option of the obligor to a date
more than 12 months after the date of the creation of such debt.
GLOBAL NOTE:
The term "Global Note" shall mean a single Note that is issued to
evidence Notes having identical terms and provisions, which is delivered to the
Depositary or pursuant to instructions of the Depositary and which shall be
registered in the name of the Depositary or its nominee.
H.15(519):
The term "H.15(519)" shall mean the weekly publication "Statistical
Release H.15(519), Selected Interest Rates" or any successor publication
published by the Board of Governors of the Federal Reserve System.
-10-
<PAGE> 11
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.
HIGHEST LAWFUL RATE:
The term "Highest Lawful Rate" shall mean at the particular time in
question the maximum rate of interest which, under applicable law, the Holders
are then permitted to charge on the Notes. If the maximum rate of interest
which, under applicable law, the Holders are permitted to charge on the Notes
shall change after the date of this Indenture Supplement, the Highest Lawful
Rate shall be automatically increased or decreased, as the case may be, from
time to time as of the effective time of each change in the Highest Lawful Rate
without notice to the Company. For purposes of determining the Highest Lawful
Rate under the applicable law of the State of Texas, the applicable rate ceiling
shall be (a) the weekly rate ceiling described in and computed in accordance
with the provisions of Articles 5069.1D and 5069.1H.002, Title 79, Revised Civil
Statutes of Texas, 1925, as amended ("Art. 5069.1D") or (b) if the parties
subsequently contract as allowed by applicable law, the quarterly ceiling or the
annualized ceiling computed pursuant to Art. 5069.1D; provided, however, that at
any time the weekly rate ceiling, the quarterly ceiling or the annualized
ceiling shall be less than 18% per annum or more than 24% per annum, the
provisions of Section 1D.009 of said Art. 5069.1D shall control for purposes of
such determination, as applicable.
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 Note shall be redeemable at the option of the Company
prior to the Stated Maturity of such Note, as specified in the applicable
Company Order.
INTEREST ACCRUAL PERIOD:
The term "Interest Accrual Period" for a particular Floating Rate Note
shall mean the period from the date of issue of such Floating Rate Note, or from
an Interest Reset Date, if any, to its next subsequent Interest Reset Date.
-11-
<PAGE> 12
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 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.
-12-
<PAGE> 13
(c) Notwithstanding the foregoing, the first Interest Payment Date for
any Note originally issued between a Record Date and the next Interest Payment
Date shall be the Interest Payment Date following the next succeeding Record
Date.
INTEREST RATE:
(a) The term "Interest Rate" for a particular Floating Rate Note shall
mean (1) from the date of issue of such Floating Rate Note to the first Interest
Reset Date for such Floating Rate Note, the Initial Interest Rate, and (2) each
Interest Accrual Period commencing on or after such First Interest Reset Date,
the Base Rate with reference to the Index Maturity for such Floating Rate Note
as specified in the applicable Company Order plus or minus the Spread, if any,
multiplied by the Spread Multiplier, if any; PROVIDED that in the event no
Spread or Spread Multiplier is provided in such Company Order, the Spread and
Spread Multiplier shall be zero and one, respectively; PROVIDED, FURTHER, in no
event shall the Interest Rate be greater than the Maximum Interest Rate, if any,
or less than the Minimum Interest Rate, if any; PROVIDED, FURTHER, the Interest
Rate in effect for the ten days immediately prior to Maturity will be the
Interest Rate in effect on the tenth day preceding such Maturity; and PROVIDED,
FURTHER, the Interest Rate will in no event be higher than the maximum rate
permitted by Texas or other applicable law, as the same may be modified by
United States federal laws of general application.
(b) The term "Interest Rate" for a particular Fixed Rate Note shall
mean the interest rate specified in the applicable Company Order.
INTEREST RATE BASIS:
The term "Interest Rate Basis" shall mean with respect to (a) CD Rate
Notes, the CD Rate, (b) CMT Rate Notes, the CMT Rate, (c) Commercial Paper Rate
Notes, the Commercial Paper Rate, (d) Eleventh District Cost of Funds Note, the
Eleventh District Cost of Funds Rate, (e) Federal Funds Rate Notes, the Federal
Funds Rate, (f) LIBOR Notes, LIBOR, (g) Prime Rate Notes, the Prime Rate, (h)
Treasury Rate Notes, the Treasury Rate, and (i) any other Floating Rate Note,
the interest rate formula which determines the variable rate at which such Note
bears interest.
INTEREST RESET DATE:
The term "Interest Reset Date" shall mean, in the case of a Floating
Rate Note specified in the applicable Company Order as being reset (a) daily:
each Business Day; (b) weekly: the Wednesday of each week (with the exception of
weekly reset Treasury Rate Notes which reset the Tuesday of each week, except as
specified below); (c) monthly: the third Wednesday of each month (with the
exception of monthly reset Floating Rate Notes as to which the Eleventh District
Cost of Funds Rate is an applicable Interest Rate Basis which will reset on the
first calendar day of the month); (d) quarterly: the third Wednesday of March,
June, September and December; (e) semiannually: the third Wednesday of the two
months specified in the applicable Company Order; and (f) annually: the third
Wednesday of the month specified in the applicable 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.
-13-
<PAGE> 14
INTEREST RESET PERIOD:
The term "Interest Reset Period" shall mean for:
(a) each Floating Rate Note on which interest is reset
monthly, quarterly, semiannually or annually, and each Fixed Rate Note,
the period:
(1) beginning on and including the Original Issue
Date of such Note or the most recent Interest Payment Date on
which interest was paid on such Note, and
(2) ending on but not including the next Interest
Payment Date or, for the last Interest Reset Period, the
Maturity Date, of such Note;
(b) each Floating Rate Note on which interest is reset daily
or weekly, the period:
(1) beginning on and including the Original Issue
Date of such Floating Rate Note, or beginning on but excluding
the most recent Record Date through which interest was paid on
such Note, and
(2) ending on and including the next Record Date or,
for the last Interest Reset Period, ending on but excluding
the Maturity Date, of such Note;
PROVIDED, HOWEVER, that the first Interest Reset Period for any Note which has
its Original Issue date after a Record Date and prior to its next Interest
Payment Date, shall begin on and include such Original Issue Date and (i) end on
and include the next Record Date for Floating Rate Notes on which interest is
reset daily or weekly, and (ii) end on but not include the second Interest
Payment Date after the Original Issue Date for all other Notes.
ISSUE PRICE:
The term "Issue Price" shall mean the price expressed as a percentage
of the aggregate principal amount of a Note at which such Note is issued.
LIBOR:
The term "LIBOR," 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
-14-
<PAGE> 15
LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates so appear, or
if no such rate so appears, as applicable, LIBOR on such LIBOR Interest
Determination Date shall be determined in accordance with the
provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear, or no rate appears, as the
case may be, on the Designated LIBOR Page as specified in clause (i)
above, the Calculation Agent will request the principal London offices
of each of four major reference banks (which may include affiliates of
the Agents) in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Designated LIBOR Currency for the period
of the Index Maturity specified in the applicable Pricing Supplement,
commencing on the applicable Interest Reset Date, to prime banks in the
London interbank market at approximately 11:00 A.M., London time, on
such LIBOR Interest Determination Date and in a principal amount that
is representative for a single transaction in the Designated LIBOR
Currency in such market at such time. If at least two such quotations
are so provided, then LIBOR on such LIBOR Interest Determination Date
shall be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date shall be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., in the applicable Principal Financial Center,
on such LIBOR Interest Determination Date by three major banks (which
may include affiliates of the Agents) in such Principal Financial
Center selected by the Calculation Agent for loans in the Designated
LIBOR Currency to leading European banks, having the Index Maturity
specified in the applicable Company Order and in a principal amount
that is representative for a single transaction in the Designated LIBOR
Currency in such market at such time; provided, however, that if the
banks so selected by the Calculation Agent are not quoting as mentioned
in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date shall be LIBOR in effect on such LIBOR Interest
Determination Date.
LIBOR INTEREST DETERMINATION DATE:
The term "LIBOR Interest Determination Date" shall mean any Interest
Determination Date relating 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 Note, shall
mean the date on which the principal of such Note or an installment of principal
becomes due and payable in accordance with its terms and the terms of this
Indenture as therein or herein provided, whether at Stated Maturity, upon
declaration of acceleration, call for redemption, repayment at the option of the
Holder or otherwise.
-15-
<PAGE> 16
MAXIMUM INTEREST RATE:
The term "Maximum Interest Rate" shall mean the maximum rate of
interest, if any, which may be applicable to any Floating Rate Note during any
Interest Accrual Period as specified in the applicable Company Order.
MINIMUM INTEREST RATE:
The term "Minimum Interest Rate" shall mean the minimum rate of
interest, if any, which may be applicable to any Floating Rate Note during any
Interest Accrual Period as specified in the applicable Company Order.
MONEY MARKET YIELD:
The term "Money Market Yield" shall be the yield (expressed as a
percentage) calculated in accordance with the following formula:
Money Market Yield = [(D x 360)/(360 - (D x M))] x 100
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the applicable Interest Reset Period.
NOTEHOLDER; HOLDER:
The terms "Noteholder" or "Holder" shall mean any Person in whose name
at the time a particular Note is registered in the register of the Company kept
for that purpose in accordance with the terms hereof.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" when used with respect to the Company,
shall mean a certificate signed by the Chairman of the Board, the President or
any Vice President and by the Secretary or an Assistant Secretary of the
Company.
OPTIONAL INTEREST RESET DATE:
The term "Optional Interest Reset Date" shall mean each date on which
the interest rate on a Fixed Rate Reset Note or the Spread and/or Spread
Multiplier of a Floating Rate Reset Note may be reset at the option of the
Company.
ORIGINAL ISSUE DATE:
The term "Original Issue Date" shall mean for a particular Note, or
portions thereof, the date upon which it, or such portion, was issued by the
Company pursuant to this Indenture or any indenture supplemental thereto and
authenticated by the Trustee (other than in connection with a transfer, exchange
or substitution).
-16-
<PAGE> 17
ORIGINAL ISSUE DISCOUNT NOTE:
The term "Original Issue Discount Note" shall mean (i) a Note that has
a "stated redemption price at maturity" that exceeds its "issue price", each as
defined for United States federal income tax purposes, by at least 0.25% of its
stated redemption price at maturity multiplied by the number of complete years
from the Original Issue Date to the Stated Maturity for such Note (or in the
case of a Note that provides for payment of any amount other than the "qualified
stated interest", as defined for United States federal income tax purposes,
prior to maturity, the weighted average maturity of the Note) and (ii) any other
Note designated by the Company in the applicable Company Order as issued with
original issue discount for United States federal income tax purposes.
PERSON:
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
PRIME RATE:
The term "Prime Rate" for a particular Floating Rate Note, unless
otherwise indicated in the applicable Company Order, shall mean, with respect to
any Prime Rate Interest Determination Date, the rate on such date as published
in H.15(519) under the caption "Bank Prime Loan" or, if not published by 3:00
P.M., New York City time, on the related Calculation Date, the rate on such
Prime Rate Interest Determination Date as published in H.15 Daily Update, or
such other recognized electronic source used for the purpose of displaying such
rate, under the caption "Bank Prime Loan." If such rate is not yet published in
H.15(519), H.15 Daily Update or another recognized electronic source by 3:00
P.M., New York City time, on the related Calculation Date, then the Prime Rate
shall be the arithmetic mean of the rates of interest publicly announced by each
bank that appears on the Reuters Screen USPRIME1 Page (as hereinafter defined)
as such bank's prime rate or base lending rate as of 11:00 A.M., New York City
time, on such Prime Rate Interest Determination Date. If fewer than four such
rates appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest
Determination Date, then the Prime Rate shall be the arithmetic mean of the
prime rates or base lending rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of business on such
Prime Rate Interest Determination Date by four major money center banks (which
may include affiliates of the Agents) in The City of New York selected by the
Calculation Agent. If fewer than four such quotations are so provided, then the
Prime Rate shall be the arithmetic mean of four prime rates quoted on the basis
of the actual number of days in the year divided by a 360-day year as of the
close of business on such Prime Rate Interest Determination Date as furnished in
The City of New York by the major money center banks, if any, that have provided
such quotations and by a reasonable number of substitute banks or trust
companies (which may include affiliates of the Agents) to obtain four such prime
rate quotations, provided such substitute banks or trust companies are organized
and doing business under the laws of the United States, or any State thereof,
each having total equity capital of at least $500 million and being subject to
supervision or examination by Federal or State authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if the
banks or trust companies so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Prime Rate determined as of such Prime Rate
Interest Determination Date will be the Prime Rate in effect on such Prime Rate
Interest Determination Date.
-17-
<PAGE> 18
PRIME RATE NOTES:
The term "Prime Rate Notes" shall mean Floating Rate Notes which are
specified in the applicable Company Order as bearing interest at an interest
rate calculated with reference to the Prime Rate.
PRINCIPAL AMOUNT:
The term "principal amount" with respect to any Note shall mean the
principal amount thereof set forth in the applicable Company Order; PROVIDED
that in the case of any Original Issue Discount Note, its principal amount as of
(i) any date that the principal amount of such Note is to be repaid prior to its
Stated Maturity, whether upon declaration of acceleration, call for redemption,
repayment at the option of the Noteholder or otherwise, or (ii) any date that
any consent, notice, request, direction, waiver or suit by the Noteholders shall
be deemed to be given, made or commenced under this Indenture, such term shall
mean the Amortized Face Amount of such Note as of such date.
PRINCIPAL FINANCIAL CENTER:
The term "Principal Financial Center" shall mean the capital city of
the country to which the Designated LIBOR Currency relates (or, in the case of
EUR, Luxembourg and London), except that with respect to United States dollars,
Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, Portuguese
escudos, South African rand and Swiss francs, the "Principal Financial Center"
shall be The City of New York, Sydney, Toronto, Frankfurt, Amsterdam, London,
Johannesburg and Zurich, respectively.
RECORD DATE:
The term "Record Date" shall mean for the Interest Payment Date for the
payment of interest for an Interest Reset Period for a particular Note, unless
otherwise specified in the applicable Company Order, (a) the day which is
fifteen calendar days immediately prior to such Interest Payment Date, whether
or not such day is a Business Day, (b) the Maturity Date of such Note, unless
such Maturity Date for a Fixed Rate Note is a January 1 or a July 1, in which
event the Record Date will be as provided in clause (a), and (c) a date which is
not less than five Business Days immediately preceding the Interest Payment Date
of defaulted interest on such Note established by notice given by first-class
mail by or on behalf of the Company to the Holder of such Note not less than
fifteen calendar days prior to such Interest Payment Date.
REDEMPTION DATE:
The term "Redemption Date" for a Note shall mean the date fixed for the
redemption of such Note in accordance with the provisions of this Indenture.
RESET NOTE:
The term "Reset Note" shall mean a Fixed Rate Note, with respect to
which the Company has the option to reset the interest rate, and a Floating Rate
Note, with respect to which the Company has the option to reset the Spread
and/or Spread Multiplier.
-18-
<PAGE> 19
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.
SPREAD MULTIPLIER:
The term "Spread Multiplier" applicable to a particular Floating Rate
Note shall mean the percentage of the related Interest Rate Basis or Bases
applicable to such Floating Rate Note as specified in the applicable Company
Order, used in the calculation of the Interest Rate for such Floating Rate Note.
STATED MATURITY:
The term "Stated Maturity," when used with respect to any Note, shall
mean the date specified in such Note as the date on which the principal of such
Note is due and payable.
TREASURY:
The term "Treasury" shall mean the United States Department of the
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 "INVESTMENT RATE" 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/Auction High" or, if not yet published by 3:00 P.M.,
-19-
<PAGE> 20
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/Auction High." 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.
TREASURY RATE NOTES:
The term "Treasury Rate Notes" shall mean Floating Rate Notes which are
specified in the applicable Company Order as bearing interest at an interest
rate calculated with reference to the Treasury Rate.
TRUSTEE:
The term "Trustee" shall mean Chase Bank of Texas, National Association
and shall also include any successor Trustee.
YIELD TO MATURITY:
The term "Yield to Maturity" shall mean for a particular Note the yield
to maturity of such Note, computed in accordance with generally accepted United
States bond yield computation principles and expressed as a percentage,
specified in the applicable Company Order.
ZERO COUPON NOTE:
The term "Zero Coupon Note" means a Note issued at a price representing
a discount from the principal amount payable at maturity and bearing a zero
fixed rate of interest.
ARTICLE TWO
Terms and Issuance of the Notes
Section 2.01. Issuance and Designation. A Series of Senior Debt
Securities which shall be designated as the Company's "Medium-Term Notes, Series
C" shall be executed, authenticated and delivered from time to time in
accordance with the provisions of, and shall in all respects be subject to, the
terms, conditions and covenants of, the Indenture and this Indenture Supplement
(including the form of Notes set forth in Exhibits A and B). The aggregate
principal amount of the Notes which may be authenticated and delivered under the
Indenture Supplement shall not, except as permitted by the provisions of the
Indenture, exceed $400,000,000.
-20-
<PAGE> 21
Section 2.02. Form and Other Terms of Notes; Incorporation of Terms.
(a) Subject to subsection (b) below, the Notes shall be in the form attached
hereto as Exhibits A and B, respectively. The Notes shall be registered in such
names, shall be in such amounts and shall have such Original Issue Dates,
Interest Rates, Maturity Dates, Redemption Dates, if any, Initial Redemption
Percentages, if any, and Annual Redemption Percentage Reductions, if any, and
such other terms as are communicated by the Company to the Trustee in accordance
with the Administrative Procedures described in the Distribution Agreement,
dated January 27, 2000, between the Company and the agents named therein. The
terms of such Notes are herein incorporated by reference and are part of this
Indenture Supplement.
(b) Any Note may be issued without the consent of the Holders of any
Notes in any such other form or forms and have such other term or terms that may
be established consistent with the Indenture and this Indenture Supplement,
including, but not limited to, Notes denominated in a foreign currency ("Foreign
Currency Notes"), and Notes that initially bear interest at a fixed rate or
floating rate through a certain date and then bear interest as established by a
remarketing agent for either a period of 365 days or less or a period of more
than 365 days ("Remarketed Notes").
Section 2.03. Depository for Global Securities. The Depositary for any
Global Securities of the series of which this Note is a part shall be the
Depository Trust Company in The City of New York.
Section 2.04. Place of Payment. The Place of Payment in respect of the
Notes will be at the principal office or agency of the Company in Dallas, Texas
or at the office or place of business of the Trustee or its successor in trust
under the Indenture, which, at the date hereof, is located at Chase Global
Trust, 450 W. 33rd, 15th Floor, New York, New York 10001.
ARTICLE THREE
Additional Covenants
Section 3.01. Limitation on Liens. The following provisions shall apply
to the Notes unless specifically otherwise provided in a series supplement.
(a) The Company will not itself, and will not permit any subsidiary
(other than Centex Financial Services, Inc. and its subsidiaries) to, issue,
assume or guarantee any indebtedness for borrowed money if such borrowed money
is secured by a mortgage, pledge, security interest, lien or other encumbrance
(any such mortgage, pledge, security interest, lien or other encumbrance being
hereinafter in this Section 3.01 referred to as a "Lien") upon or with respect
to any of the properties or assets of the Company or any such subsidiary or on
any shares of capital stock or other equity interests of any subsidiary that
owns property or assets (other than Centex Financial Services, Inc. and its
subsidiaries), whether, in each case, owned at the date of this Indenture
Supplement or thereafter acquired, unless the Company makes effective provision
whereby the Notes shall be secured by such Lien equally and ratably with any and
all other borrowed money thereby secured; provided, however, that the foregoing
restrictions shall not be applicable to:
(i) Any Lien existing on any of the Company's properties or assets
or shares of capital stock or other equity interests at the date of
this Indenture Supplement;
(ii) Any Lien created by a subsidiary in favor of the Company or
any wholly-owned subsidiary;
-21-
<PAGE> 22
(iii) Any Lien on any asset of any corporation or other entity (or
on any accession or improvement to such asset or any proceeds thereof)
existing at the time such corporation or other entity becomes a
subsidiary;
(iv) Any Lien on any asset of any corporation or other entity (or
on any accession or improvement to such asset or any proceeds thereof)
existing at the time such corporation or other entity is merged or
consolidated with or into the Company or a subsidiary;
(v) Any Lien on any asset existing at the time of acquisition
thereof (or on any accession or improvement to such asset or any
proceeds thereof) by the Company or any subsidiary;
(vi) Any Lien on any asset (or on any accession or improvement to
such asset or any proceeds thereof) securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring such asset or the making of any improvement thereof; provided
that such Lien attaches to such asset concurrently with or within 180
days after the acquisition thereof or the making of such improvement;
(vii) Any Lien incurred in connection with pollution control,
industrial revenue or any similar financing;
(viii) Any Lien arising out of the refinancing, extension, renewal
or replacement of any of the Liens permitted by any of clauses (i)
through (vii) above; provided that such Indebtedness is not increased
and is not secured by any additional assets; and
(ix) any Lien imposed by law.
(b) Notwithstanding the provisions of subsection (a) of this Section
3.01, the Company or any subsidiary may issue, assume or guarantee indebtedness
for borrowed money secured by a Lien which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with all other
such secured borrowings of the Company and its subsidiaries and the Attributable
Debt (as defined below) in respect of Sale and Lease-Back Transactions (as
defined in Section 3.02) existing at such time (other than Sale and Lease-Back
Transactions not subject to the limitation contained in Section 3.02), does not
at the time exceed twenty percent (20%) of the Consolidated Net Tangible Assets
of the Company and its subsidiaries, as shown on the audited consolidated
balance sheet contained in the latest annual report to stockholders of the
Company. The term "Attributable Debt" as used in this paragraph shall mean, as
of any particular time, the present value of the obligation of a lessee for
rental payments during the remaining term of any lease (including any period for
which such lease has been extended or may, at the option of the lessor, be
extended).
Section 3.02. Limitation on Sale and Lease-Back Transactions. The
Company will not, nor will it permit any subsidiary to, enter into any
arrangement with any person (other than the Company) providing for the leasing
by the Company or a subsidiary of any of its properties or assets (except for
temporary leases for a term of not more than three (3) years and except for
sales and leases of model homes), which property has been or is to be sold or
transferred by the Company or such subsidiary to such person (herein referred to
as a "Sale and Lease-Back Transaction"), unless (a) the net proceeds to the
Company or such subsidiary from such sale or transfer equal or exceed the fair
value (as determined by the Board of Directors, the Chairman of the Board, the
Vice Chairman, the President or the principal financial officer of the Company)
of the property so leased, (b) the Company or such subsidiary would be entitled
to incur Indebtedness secured by a Lien on the property to be leased pursuant to
Section 3.01, (c) the Company shall, and in any such case
-22-
<PAGE> 23
the Company covenants that it will, apply an amount equal to the fair value (as
determined by the Board of Directors, the Chairman of the Board, the Vice
Chairman, the President or the principal financial officer of the Company) of
the property so leased to the retirement (other than any mandatory retirement),
within 180 days of the effective date of any such Sale and Lease-Back
Transaction, of Funded Indebtedness of the Company, (d) such Sale and Lease-Back
Transaction relates to a sale which occurred within 180 days from the date of
acquisition of such property by the Company or a subsidiary or the date of the
completion of construction or commencement of full operations on such property,
whichever is later, or (e) such transaction was consummated prior to the date of
this Indenture Supplement.
ARTICLE FOUR
Defeasance
Section 4.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at any time, with respect to the Notes, elect to have either
Section 13.01 of the Indenture or Section 4.03 of this Indenture Supplement be
applied to all outstanding Notes upon compliance with the conditions set forth
in Article Thirteen of the Indenture and below in this Article Four.
Section 4.02. Legal Defeasance. Upon the Company's exercise under
Section 4.01 of the option applicable to Section 13.01 of the Indenture, the
Company may terminate its obligations under the Notes, the Indenture and this
Indenture Supplement by complying with the terms and conditions of Section 13.01
of the Indenture; provided, however, that the Opinion of Counsel delivered to
the Trustee will also state that either (A) the Company has received from, or
there has been published by, the Internal Revenue Service, a ruling or (B) since
the date hereof, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
Section 4.03. Covenant Defeasance. Upon the Company's exercise under
Section 4.01 of the option applicable to this Section 4.03, the Company shall be
released from its obligations under the covenants contained in Article Three of
this Indenture Supplement with respect to the outstanding Notes on and after the
date the conditions set forth below are satisfied ("Covenant Defeasance"), and
the Notes shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default, but, except as
specified above, the remainder of the Indenture and such Notes shall be
unaffected thereby. In addition, the Company's exercise under Section 4.01 of
the option applicable to this Section 4.03 shall not constitute an Event of
Default.
Section 4.04. Conditions to Covenant Defeasance. The following shall be
the conditions to the application of Section 4.03 to the outstanding Notes:
-23-
<PAGE> 24
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds in trust solely
for the benefit of the holders of such Notes for that purpose, money or direct
non-callable obligations of, or non-callable obligations guaranteed by, the
United States of America for the payment of which guarantee or obligation the
full faith and credit of the United States is pledged ("U.S. Government
Obligations") maturing as to principal and interest in such amounts and at such
times as are sufficient, as verified in a Certificate of a Firm of Independent
Public Accountants, without consideration of any reinvestment of such interest,
to pay principal of and interest or sinking funds on the outstanding Notes to
maturity or redemption as the case may be, provided that the Trustee or any
paying agent shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of said principal
and interest and said sinking fund with respect to the Notes. The Company may
make an irrevocable deposit pursuant to this Section 4.04 only if at such time
the Company shall have delivered to the Trustee and any such paying agent an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions herein precedent to the satisfaction and discharge of this Indenture
have been complied with and the Opinion of Counsel further states that the
making of such deposit (i) does not contravene or violate any provision of any
indenture, mortgage, loan agreement or other similar agreement known to such
counsel to which the Company is a party or by which it or any of its property is
bound, (ii) does not require registration by the deposit referred to above under
the Investment Company Act of 1940, as amended, and (iii) to the effect that the
holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and will be subject
to federal income tax in the same amount, in the same manner and at the same
times as would have been the case if such defeasance had not occurred.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.06, 2.08, 5.01, 5.02, 5.05, 6.01, 8.06, 8.10, 13.04 and 13.05 of the
Indenture shall survive until the Notes are no longer outstanding. Thereafter,
the Company's obligations in Section 8.06, 13.04 and 13.05 of the Indenture
shall survive.
ARTICLE FIVE
Miscellaneous
Section 5.01. Ratification of Indenture. As supplemented by this
Indenture Supplement, the Indenture is in all respects ratified and confirmed
and the Indenture as so supplemented by this Indenture Supplement shall be read,
taken and construed as one and the same instrument.
Section 5.02. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture Supplement by any of the provisions of
the Trust Indenture Act, such required provisions shall control.
Section 5.03. Effect of Headings. The article and section headings
herein are included for convenience only and shall not affect the construction
hereof.
Section 5.04. Counterparts. This Indenture Supplement may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
-24-
<PAGE> 25
Section 5.05. Severability. In case any provision of this Indenture
Supplement or in the Senior Notes shall be found invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 5.06. Benefits of Indenture Supplement. Nothing in this
Indenture Supplement or in the Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture Supplement.
Section 5.07. Acceptance of Trusts. Chase Bank of Texas, National
Association hereby accepts the trusts in this Indenture Supplement declared and
provided, upon the terms and conditions herein and in the Indenture set forth.
Section 5.08. Governing Law. This Indenture Supplement and each Note
issued hereunder shall be deemed to be a contract made under the laws of the
State of Texas, and for all purposes shall be construed in accordance with the
laws of said State.
Section 5.09. Compliance with Law. It is the intent of the Company and
the Holders of the Notes to conform to and contract in strict compliance with
applicable usury law from time to time in effect. All agreements between the
Holders of the Notes and the Company are hereby limited by the provisions of
this Section 5.09 which shall override and control all such agreements, whether
now existing or hereafter arising and whether written or oral. In no way, nor in
any event or contingency (including but not limited to prepayment, default,
demand for payment, or acceleration of the maturity of any obligation), shall
the interest taken, reserved, contracted for, charged or received under this
Indenture Supplement or the Notes or otherwise, exceed the Highest Lawful Rate.
If, from any possible construction of any document, interest would otherwise be
payable in excess of the Highest Lawful Rate, any such construction shall be
subject to the provisions of this Section 5.09 and such document shall be
automatically reformed and the interest payable shall be automatically reduced
to the Highest Lawful Rate, without the necessity of execution of any amendment
or new document. If the Holders shall ever receive anything of value which is
characterized as interest under applicable law and which would apart from this
provision be in excess of the Highest Lawful Rate, an amount equal to the amount
which would have been excessive interest shall, without penalty, be applied to
the reduction of the principal amount owing on the Notes in the inverse order of
its maturity and not to the payment of interest, or refunded to the Company if
and to the extent such amount which would have been excessive exceeds such
unpaid principal. The right to accelerate the maturity of the Notes does not
include the right to accelerate any interest which has not otherwise accrued on
the date of such acceleration, and the Holders do not intend to charge or
receive any unearned interest in the event of acceleration. All interest paid or
agreed to be paid to the Holders shall, to the extent permitted by applicable
law, be amortized, prorated, allocated and spread throughout the full stated
term (including any renewal or extension) of the Notes so that the amount of
interest on account of the Notes does not exceed the Highest Lawful Rate.
[Remainder of page intentionally left blank.]
-25-
<PAGE> 26
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: /s/ Vicki A. Roberts
--------------------------
Vicki A. Roberts
Vice President and Treasurer
/s/ Drew F. Nachowiak
- --------------------------
Drew F. Nachowiak
Assistant Secretary
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
[SEAL]
Attest: By: /s/ John G. Jones
--------------------------------
Name: John G. Jones
Title: Vice President
/s/ Dennis J. Roemlein
- --------------------------------
Name: Dennis J. Roemlein
Title: Vice President
-26-
<PAGE> 27
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 26 day of January, 2000.
/s/ REBECCA L. ARREDONDO
-------------------------------------------
Notary Public in and for the State of Texas
Rebecca L. Arredondo
My commission expires: -------------------------------------------
Printed Name of Notary Public
5/10/03
- --------------------------
STATE OF TEXAS )
)
COUNTY OF HARRIS )
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared John G. Jones and Dennis J. Roemlein,
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 27 day of January, 2000.
/s/ CASSANDRA M. EDMONDSON
-------------------------------------------
Notary Public in and for the State of Texas
Cassandra M. Edmondson
My commission expires: -------------------------------------------
Printed Name of Notary Public
3/17/2003
- --------------------------
-27-
<PAGE> 28
EXHIBIT A
GLOBAL SENIOR FIXED RATE NOTE
REGISTERED PRINCIPAL AMOUNT
NO. $
--------
CENTEX CORPORATION
Senior Medium-Term Note, Series C
Fixed Rate
Unless this Senior 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 Senior 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 Senior Notes
in certificated form, this Senior 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.: 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 Senior Note has two or more Original
Issue Dates, interest shall, beginning on each such Original Issue
<PAGE> 29
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
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 a rate per annum from time to time equal to the lesser of (i) the Highest
Lawful Rate (as defined in the Indenture) or (ii) 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 Senior 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
Senior 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 Senior 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 Senior Noteholders not less
than fifteen calendar days prior to such Record Date. Payment of the principal
of and any premium and interest on this Senior 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 Senior Note, the
Depositary shall surrender, or cause to be surrendered, this Global Senior 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 Senior Note.
Under certain circumstances, this Global Senior Note is exchangeable
in whole or from time to time in part for a definitive individual Senior Note
or Senior 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 Senior 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
SENIOR 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 Senior Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
2
<PAGE> 30
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 Senior Notes referred
to in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee
By:
---------------------------------
Authorized Signatory
3
<PAGE> 31
[REVERSE OF GLOBAL SENIOR FIXED RATE NOTE]
CENTEX CORPORATION
SENIOR FIXED RATE MEDIUM-TERM NOTE, SERIES C
This Global Senior Note is one of, and a global security which
represents Senior Notes which are part of, a duly authorized issue of Senior
Debt Securities of the Company (herein called the "Senior Notes"), issued and
to be issued in one or more Series under an Indenture dated as of October 1,
1998 (herein called the "Senior Indenture") between the Company and Chase Bank
of Texas, National Association, as Trustee (herein called the "Trustee," which
term includes any successor Trustee under the Senior Indenture), to which
Senior Indenture and all indentures supplemental thereto (including the
Indenture Supplement dated as of January ___, 2000 which authorizes the Senior
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 Senior Noteholders, and of the terms upon which the Senior
Notes are, and are to be, authenticated and delivered. All terms used in this
Senior Note which are defined in the Senior Indenture or in any indenture
supplemental thereto but are not defined in this Senior Note shall have the
meanings assigned to them in the Senior Indenture or in any indenture
supplemental thereto.
Each Senior Note shall be dated the date of its authentication by the
Trustee. Each Senior Note shall also bear an Original Issue Date or Dates which
with respect to this Global Senior Note (or any portion thereof) shall mean the
date or dates of the original issue of the Senior Notes represented hereby as
specified on the face hereof, and such Original Issue Date or Dates shall
remain the same for all Senior Notes subsequently issued upon transfer,
exchange or substitution of such original Senior Note (or such subsequently
issued Senior Notes) regardless of their dates of authentication. The Senior
Notes may bear different dates, mature at different times, bear interest at
different rates, be subject to different redemption provisions, if any, and may
otherwise vary, all as provided in the Senior Indenture.
The indebtedness evidenced by the Senior Notes is, to the extent and
in the manner provided in the Senior Indenture and the Indenture Supplement,
senior in right of payment to certain indebtedness of the Company.
Interest on this Senior 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 Senior 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 Senior
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 Senior Note is an Amortizing Note, payments with respect to this Senior
Note will be applied first to interest due and payable hereon and then to the
reduction of the unpaid principal amount hereof. If this Senior Note is an
Amortizing Note, a table setting forth the schedule of dates and amounts of
payments of principal of and interest on this Senior Note or the formula for
the amortization of principal and/or interest is set forth in an annex attached
to this Senior Note.
All percentages resulting from any calculation with respect to this
Senior 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 Senior 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 Senior 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 Senior 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.
4
<PAGE> 32
This Senior 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 Senior 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 Senior Note, plus accrued and unpaid interest to but excluding
the date of redemption, but payments due with respect to this Senior Note prior
to the date of redemption will be payable to the Holder of this Senior Note of
record at the close of business on the relevant Record Date specified on the
face hereof, all as provided in the Senior Indenture. Notice of such redemption
shall be given by mailing by first-class mail a notice of such redemption not
less than 20 nor more than 60 calendar days prior to the date fixed for
redemption to the Holder of this Senior Note, in accordance with the provisions
of the Senior Indenture. In the event of redemption of this Senior Note in part
only, this Senior Note will be canceled and a new Senior Note or Senior Notes
representing the unredeemed portion hereof will be issued in the name of the
Holder hereof. This Senior Note is not subject to a sinking fund unless
otherwise specified in an annex attached hereto.
If so specified on the face of this Senior Note, (i) this Senior 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 Senior 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 Senior Note as of the date of declaration, redemption or
repayment, as the case may be. The "Amortized Face Amount" of this Senior Note
shall be the amount equal to the principal amount of this Senior 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 Senior 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 Senior Notes, the principal hereof may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Senior Indenture. The Senior
Indenture provides that in certain events such declaration and its consequences
may be waived by the Holders of a majority in aggregate principal amount of the
Senior Notes then outstanding. An Event of Default with respect to the Senior
Debt Security of any other Series issued under the Senior Indenture, including
the failure to make any payment of principal or interest with respect thereto
when and as due, will not be an Event of Default with respect to the Senior
Notes.
The Senior Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Senior Notes at the time outstanding,
evidenced as in the Senior Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating
any of the provisions of the Senior Indenture or of any supplemental indenture
or modifying in any manner the rights of the Holders of the Senior Notes;
PROVIDED, HOWEVER, that no such supplemental indenture shall (i) extend the
fixed maturity of any Senior 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 Senior Note so affected, or (ii) reduce the aforesaid percentage
of Senior Notes, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of all Senior Notes
then outstanding. It is also provided in the Senior Indenture that the Holders
of a majority in aggregate principal amount of the Senior Notes at the time
outstanding may on behalf of the Holders of all the Senior Notes waive any past
default under the Senior Indenture and its consequences, except a default in
the payment of the principal of or premium, if any, or interest on any of the
Senior Notes. Any such consent or waiver by the Holder of this Global Senior
Note (unless revoked as provided in the Senior Indenture) shall be conclusive
and
5
<PAGE> 33
binding upon such Holder and upon all future Holders and owners of this Global
Senior Note and of any Senior Note issued in exchange or substitution herefor,
whether or not any notation of such consent or waiver is made upon this Global
Senior Note.
As set forth in, and subject to, the provisions of the Senior
Indenture, no Holder of any Senior Notes will have any right to institute any
proceeding with respect to the Senior Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written notice of
default in respect of the Senior Notes and the continuance thereof, and unless
the Holders of not less than 25 percent in aggregate principal amount of the
Senior 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 Senior Note on or after
the respective due dates expressed herein.
THIS SENIOR NOTE IS A GLOBAL SENIOR 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 SENIOR 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 Senior Note notifies the
Company that it is unwilling or unable to continue as Depositary for this
Global Senior Note or if at any time the Depositary for this Global Senior 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 Senior
Note. If (A) a successor Depositary for this Global Senior 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 Senior Notes are
represented by this Global Senior Note at a time when an Event of Default with
respect to the Senior Notes shall have occurred and be continuing, then in each
case the Company's election to issue this Senior Note in global form shall no
longer be effective with respect to this Global Senior Note and the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Senior Notes in exchange for this
Global Senior Note, shall authenticate and make available for delivery,
individual Senior Notes of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of this Global Senior
Note in exchange for this Global Senior Note.
If agreed by the Company and the Depositary with respect to Senior
Notes issued in the form of this Global Senior Note, the Depositary for such
Global Senior Note shall surrender this Global Senior Note in exchange in whole
or in part for individual Senior 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 Senior Note or Senior 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 Senior Note, and (2) to such Depositary a new
Global Senior Note of like tenor and terms and in a denomination equal to the
difference, if any, between the principal amount of this Global Senior Note and
the aggregate principal amount of Senior Notes delivered to Holders thereof.
Under certain circumstances specified in the Senior Indenture, the
Depositary may be required to surrender any two or more Global Senior 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
Senior Note in principal amount equal to the aggregate principal amount of, and
with all terms identical to, the Global Senior Notes surrendered to the
Trustee, and such new Global Senior Note shall indicate each applicable
Original Issue Date and the principal amount applicable to each such Original
Issue Date.
6
<PAGE> 34
No reference herein to the Senior Indenture and no provision of this
Global Senior Note or of the Senior Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Global Senior Note at the
times, places and rates, and in the coin or currency, herein prescribed.
The Senior Indenture contains provisions for the satisfaction and
discharge of the Senior Indenture upon compliance by the Company with certain
conditions specified therein, which provisions apply to this Senior Note.
The Company, the Trustee, any paying agent and any Senior Debt
Security Registrar (as defined in the Senior Indenture) for the Senior Notes
may deem and treat the Holder hereof as the absolute owner of this Global
Senior Note (whether or not this Global Senior Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Company or any such Senior Debt Security Registrar), for
the purpose of receiving payment hereof or on account hereof and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
such Senior Debt Security Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this Global Senior Note, or for any claim
based hereon or otherwise in respect hereof, or based on or in respect of the
Senior Indenture or any indenture supplemental thereto, against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
It is the intent of the Company and the Holders of this Senior Note to
conform to and contract in strict compliance with applicable usury law from
time to time in effect. All agreements between the Holders of this Senior Note
and the Company are hereby limited by the provisions of this paragraph which
shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. In no way, nor in any event or
contingency (including but not limited to prepayment, default, demand for
payment, or acceleration of the maturity of any obligation), shall the interest
taken, reserved, contracted for, charged or received under this Senior Note or
otherwise exceed the Highest Lawful Rate. If, from any possible construction of
any document, interest would otherwise be payable in excess of the Highest
Lawful Rate, any such construction shall be subject to the provisions of this
paragraph and such document shall be automatically reformed and the interest
payable shall be automatically reduced to the Highest Lawful Rate, without the
necessity of execution of any amendment or new document. If the Holders of this
Senior Note shall ever receive anything of value which is characterized as
interest under applicable law and which would apart from this provision be in
excess of the Highest Lawful Rate, an amount equal to the amount which would
have been excessive interest shall, without penalty, be applied to the
reduction of the principal amount owing on this Senior Note in the inverse
order of its maturity and not to the payment of interest, or refunded to the
Company if and to the extent such amount which would have been excessive
exceeds such unpaid principal. The right to accelerate the maturity of this
Senior Note does not include the right to accelerate any interest which has not
otherwise accrued on the date of such acceleration, and the Holders of this
Senior Note do not intend to charge or receive any unearned interest in the
event of acceleration. All interest paid or agreed to be paid to the Holders of
this Senior Note shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full stated term
(including any renewal or extension) of this Senior Note so that the amount of
interest on account of this Senior Note does not exceed the Highest Lawful
Rate.
7
<PAGE> 35
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Senior 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 Senior 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 Senior Notes to be issued to the Holder for the
portion of this Senior Note not being repaid (in the absence of any such
specification, one such Senior 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 Senior Note in every particular,
without alteration or enlargement or any change whatsoever.
8
<PAGE> 36
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 Senior Note and all rights thereunder, hereby irrevocably
constituting and appointing
- ----------------------------------------------------------------- attorney to
transfer said note on the books of the Company, with full power of substitution
in the premises.
Dated:
---------------------------- ------------------------------------
NOTICE: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
The signature(s) must be guaranteed
by an "eligible guarantor
institution" that is a member or
participant in the Securities
Transfer Agents Medallion Program,
the Stock Exchange Medallion Program
or the New York Stock Exchange, Inc.
Medallion Program.
9
<PAGE> 37
EXHIBIT B
GLOBAL SENIOR FLOATING RATE NOTE
REGISTERED PRINCIPAL AMOUNT
NO. $
--------
CENTEX CORPORATION
Senior Medium-Term Note, Series C
Floating Rate
Unless this Senior 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 Senior 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 Senior Notes
in certificated form, this Senior 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
</TABLE>
<PAGE> 38
<TABLE>
<S> <C>
RECORD DATES: OTHER/ADDITIONAL PROVISIONS
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 [ ] Actual/360 for the period from
Commencement 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 Senior 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 from time to time equal to the lesser of (i) the
Highest Lawful Rate (as defined in the Indenture) or (ii) 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 Senior 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 Senior 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 Senior 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 Senior 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
Senior Noteholders not less than fifteen calendar days prior to such Record
Date. Payment of the principal of and any premium and interest on this Senior
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 Senior Note, the Depositary shall surrender, or cause to be surrendered,
this Global Senior 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
Senior Note.
2
<PAGE> 39
Under certain circumstances, this Global Senior Note is exchangeable in
whole or from time to time in part for a definitive individual Senior Note or
Senior 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 Senior 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
SENIOR 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 Senior Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
3
<PAGE> 40
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
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 Senior Notes referred
to in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee
By:
---------------------------------
Authorized Signatory
4
<PAGE> 41
[REVERSE OF GLOBAL SENIOR FLOATING RATE NOTE]
CENTEX CORPORATION
SENIOR FLOATING RATE MEDIUM-TERM NOTE, SERIES C
This Global Senior Note is one of, and a global security which
represents Senior Notes which are part of, a duly authorized issue of Senior
Debt Securities of the Company (herein called the "Senior Notes"), issued and to
be issued in one or more Series under an Indenture dated as of October 1, 1998
(herein called the "Senior Indenture") between the Company and Chase Bank of
Texas, National Association, as Trustee (herein called the "Trustee," which term
includes any successor Trustee under the Senior Indenture), to which Senior
Indenture and all indentures supplemental thereto (including the Indenture
Supplement dated as of January ___, 2000 which authorizes the Senior 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
Senior Noteholders, and of the terms upon which the Senior Notes are, and are to
be, authenticated and delivered. All terms used in this Senior Note which are
defined in the Senior Indenture or in any indenture supplemental thereto but are
not defined in this Senior Note shall have the meanings assigned to them in the
Senior Indenture or in any indenture supplemental thereto.
Each Senior Note shall be dated the date of its authentication by the
Trustee. Each Senior Note shall also bear an Original Issue Date or Dates which
with respect to this Global Senior Note (or any portion thereof) shall mean the
date or dates of the original issue of the Senior Notes represented hereby as
specified on the face hereof, and such Original Issue Date or Dates shall remain
the same for all Senior Notes subsequently issued upon transfer, exchange or
substitution of such original Senior Note (or such subsequently issued Senior
Notes) regardless of their dates of authentication. The Senior Notes may bear
different dates, mature at different times, bear interest at different rates, be
subject to different redemption provisions, if any, and may otherwise vary, all
as provided in the Senior Indenture.
The indebtedness evidenced by the Senior Notes is, to the extent and in
the manner provided in the Senior Indenture and the Series Supplement, senior in
right of payment to certain indebtedness of the Company.
Interest on this Senior 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 Senior 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 Senior
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 Senior
Note. Upon the request of any Holder of this Senior 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 Senior 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 Senior
Note is an Amortizing Note, payments with respect to this Senior Note will be
applied first to interest due and payable hereon and then to the reduction of
the unpaid principal amount hereof. If this Senior Note is an Amortizing Note, a
table setting forth the schedule of dates and amounts of payments of principal
of and interest on this Senior Note or the formula for the amortization of
principal and/or interest is set forth in an annex attached to this Senior Note.
All percentages resulting from any calculation with respect to this
Senior 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 Senior Note will be
rounded, in the case of United States dollars, to the nearest cent or, in the
case of a foreign or composite currency, to the nearest unit (with one-half cent
or unit being rounded upwards).
5
<PAGE> 42
If an Interest Payment Date or Maturity for this Senior 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 Senior 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 Senior 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 Senior Note will be made on
the immediately preceding Business Day.
This Senior 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 Senior 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 Senior Note, plus accrued and unpaid interest to but excluding
the date of redemption, but payments due with respect to this Senior Note prior
to the date of redemption will be payable to the Holder of this Senior Note of
record at the close of business on the relevant Record Date specified on the
face hereof, all as provided in the Senior Indenture. Notice of such redemption
shall be given by mailing by first-class mail a notice of such redemption not
less than 20 nor more than 60 calendar days prior to the date fixed for
redemption to the Holder of this Senior Note, in accordance with the provisions
of the Senior Indenture. In the event of redemption of this Senior Note in part
only, this Senior Note will be canceled and a new Senior Note or Senior Notes
representing the unredeemed portion hereof will be issued in the name of the
Holder hereof. This Senior Note is not subject to a sinking fund unless
otherwise specified in an annex attached hereto.
If so specified on the face of this Senior Note, (i) this Senior 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 Senior Notes, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Senior Indenture. The Senior Indenture
provides that in certain events such declaration and its consequences may be
waived by the Holders of a majority in aggregate principal amount of the Senior
Notes then outstanding. An Event of Default with respect to the Senior Debt
Security of any other Series issued under the Senior Indenture, including the
failure to make any payment of principal or interest with respect thereto when
and as due, will not be an Event of Default with respect to the Senior Notes.
The Senior Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Senior Notes at the time outstanding,
evidenced as in the Senior Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Senior Indenture or of any supplemental indenture or
modifying in any manner the rights of the Holders of the Senior Notes; PROVIDED,
HOWEVER, that no such supplemental indenture shall (i) extend the fixed maturity
of any Senior 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 Senior Note
so affected, or (ii) reduce the aforesaid percentage of Senior Notes, the
consent of the Holders of which is required for any such supplemental indenture,
without the consent of the Holders of all Senior Notes then outstanding. It is
also provided in the Senior Indenture that the Holders of a majority in
aggregate principal amount of the Senior Notes at the time outstanding may on
behalf of the Holders of all the Senior Notes waive any past default under the
Senior Indenture and its consequences, except a default in the payment of the
principal of or premium, if any, or interest on any of the Senior Notes. Any
such consent or waiver by the Holder of this Global Senior Note (unless revoked
as provided in the Senior Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Global Senior Note and of
any Senior Note issued in exchange or substitution herefor, whether or not any
notation of such consent or waiver is made upon this Global Senior Note.
6
<PAGE> 43
As set forth in, and subject to, the provisions of the Senior
Indenture, no Holder of any Senior Notes will have any right to institute any
proceeding with respect to the Senior Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written notice of
default in respect of the Senior Notes and of the continuance thereof, and
unless the Holders of not less than 25 percent in aggregate principal amount of
the Senior 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 Senior Note on or after
the respective due dates expressed herein.
THIS SENIOR NOTE IS A GLOBAL SENIOR 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 SENIOR NOTES REPRESENTED HEREBY, THIS GLOBAL
SENIOR 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 Senior Note notifies the
Company that it is unwilling or unable to continue as Depositary for this Global
Senior Note or if at any time the Depositary for this Global Senior 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 Senior Note. If (A) a
successor Depositary for this Global Senior 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 Senior Notes are represented by this Global
Senior Note at a time when an Event of Default with respect to the Senior Notes
shall have occurred and be continuing, then in each case the Company's election
to issue this Senior Note in global form shall no longer be effective with
respect to this Global Senior Note and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Senior Notes in exchange for this Global Senior Note, shall
authenticate and make available for delivery, individual Senior Notes of like
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of this Global Senior Note in exchange for this Global Senior
Note.
If agreed by the Company and the Depositary with respect to Senior
Notes issued in the form of this Global Senior Note, the Depositary for such
Global Senior Note shall surrender this Global Senior Note in exchange in whole
or in part for individual Senior 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 Senior Note or Senior 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 Senior Note, and (2) to such Depositary a new Global
Senior Note of like tenor and terms and in a denomination equal to the
difference, if any, between the principal amount of this Global Senior Note and
the aggregate principal amount of Senior Notes delivered to Holders thereof.
Under certain circumstances specified in the Senior Indenture, the
Depositary may be required to surrender any two or more Global Senior 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 Senior Note in
principal amount equal to the aggregate principal amount of, and with all terms
identical to, the Global Senior Notes surrendered to the Trustee, and such new
Global Senior Note shall indicate each applicable Original Issue Date and the
principal amount applicable to each such Original Issue Date.
No reference herein to the Senior Indenture and no provision of this
Global Senior Note or of the Senior Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Global Senior Note at the
times, places and rates, and in the coin or currency, herein prescribed.
7
<PAGE> 44
The Senior Indenture contains provisions for the satisfaction and
discharge of the Senior Indenture upon compliance by the Company with certain
conditions specified therein, which provisions apply to this Senior Note.
The Company, the Trustee, any paying agent and any Senior Debt Security
Registrar (as defined in the Senior Indenture) for the Senior Notes may deem and
treat the Holder hereof as the absolute owner of this Global Senior Note
(whether or not this Global Senior Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon made by anyone other than the
Company or any such Senior Debt Security Registrar), for the purpose of
receiving payment hereof or on account hereof and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any such Senior
Debt Security Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this Global Senior Note, or for any claim based
hereon or otherwise in respect hereof, or based on or in respect of the Senior
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
It is the intent of the Company and the Holders of this Senior Note to
conform to and contract in strict compliance with applicable usury law from time
to time in effect. All agreements between the Holders of this Senior Note and
the Company are hereby limited by the provisions of this paragraph which shall
override and control all such agreements, whether now existing or hereafter
arising and whether written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment, default, demand for payment, or
acceleration of the maturity of any obligation), shall the interest taken,
reserved, contracted for, charged or received under this Senior Note or
otherwise exceed the Highest Lawful Rate. If, from any possible construction of
any document, interest would otherwise be payable in excess of the Highest
Lawful Rate, any such construction shall be subject to the provisions of this
paragraph and such document shall be automatically reformed and the interest
payable shall be automatically reduced to the Highest Lawful Rate, without the
necessity of execution of any amendment or new document. If the Holders of this
Senior Note shall ever receive anything of value which is characterized as
interest under applicable law and which would apart from this provision be in
excess of the Highest Lawful Rate, an amount equal to the amount which would
have been excessive interest shall, without penalty, be applied to the reduction
of the principal amount owing on this Senior Note in the inverse order of its
maturity and not to the payment of interest, or refunded to the Company if and
to the extent such amount which would have been excessive exceeds such unpaid
principal. The right to accelerate the maturity of this Senior Note does not
include the right to accelerate any interest which has not otherwise accrued on
the date of such acceleration, and the Holders of this Senior Note do not intend
to charge or receive any unearned interest in the event of acceleration. All
interest paid or agreed to be paid to the Holders of this Senior Note shall, to
the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full stated term (including any renewal or extension) of
this Senior Note so that the amount of interest on account of this Senior Note
does not exceed the Highest Lawful Rate.
8
<PAGE> 45
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Senior 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 Senior 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 Senior Notes to be issued to the Holder for the portion of this Senior
Note not being repaid (in the absence of any such specification, one such Senior
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 Senior Note in every particular,
without alteration or enlargement or any change whatsoever.
9
<PAGE> 46
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 Senior Note and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________________ attorney to
transfer said note on the books of the Company, with full power of substitution
in the premises.
Dated:
---------------------------- ----------------------------------------
NOTICE: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatever. The signature(s) must
be guaranteed by an "eligible guarantor
institution" that is a member or
participant in the Securities Transfer
Agents Medallion Program, the Stock
Exchange Medallion Program or the New
York Stock Exchange, Inc. Medallion
Program.
<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. 6
Dated as of January 27, 2000
to
INDENTURE
Dated as of March 12, 1987
Subordinated Medium-Term Notes, Series C
<PAGE> 2
INDENTURE SUPPLEMENT NO. 6 ("Indenture Supplement"), dated as of
January 27, 2000, 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 C (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.
2
<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 "CDs (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 "CDs (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 CMT Rate Interest
Determination Date, 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 Date will be such treasury constant maturity rate for the
3
<PAGE> 4
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.
4
<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
5
<PAGE> 6
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;
6
<PAGE> 7
(14) if the Subordinated Note is a Floating Rate Note, its:
<TABLE>
<S> <C> <C> <C>
(A) Initial Interest Rate (I) Interest Reset Dates
(B) Interest Rate Basis or Bases (J) Spread
(including any Designated LIBOR
Currency and Designated LIBOR
Page or any Designated CMT
Maturity Index and Designated CMT
Telerate Page)
(C) Index Maturity (K) Spread Multiplier
(D) Interest Determination Dates (L) Maximum Interest Rate
(E) Interest Reset Period (M) Minimum Interest Rate
(F) Initial Interest Reset Date (N) Interest Payment Dates
(G) Fixed Rate Commencement Date, if (O) Record Dates
applicable
(H) Fixed Interest Rate, if applicable
</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.
7
<PAGE> 8
CUSIP:
The term "CUSIP" shall mean the registered trademark "Committee on
Uniform Securities Identification Procedures" or "CUSIP" and a unique system of
identification of each public issue of a security owned by the American Bankers
Association and administered by Standard and Poor's Corporation, as agent of the
American Bankers Association.
DEPOSITARY:
The term "Depositary" shall mean, unless otherwise specified by the
Company, The Depository Trust Company, New York, New York, or any successor
thereto registered as a Clearing Agency under the Securities and Exchange Act of
1934, as amended, or any successor statute or regulation.
DESIGNATED CMT TELERATE PAGE:
The term "Designated CMT Telerate Page" shall mean the display on
Bridge Telerate, Inc. (or any successor service) on the page specified in the
applicable Pricing Supplement (or any other page as may replace such page on
such service) for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519) or, if no such page is specified in the applicable Pricing
Supplement, page 7052.
DESIGNATED CMT MATURITY INDEX:
The term "Designated CMT Maturity Index" shall mean the original period
to maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified in the applicable Pricing Supplement with respect to which the
CMT Rate will be calculated or, if no such maturity is specified in the
applicable Pricing Supplement, 2 years.
DESIGNATED LIBOR CURRENCY:
The term "Designated LIBOR Currency" shall mean the currency or
composite currency specified in the applicable Company Order as to which LIBOR
shall be calculated or, if no such currency or composite currency is specified
in the applicable Company Order, United States dollars.
DESIGNATED LIBOR PAGE:
The term "Designated LIBOR Page" shall mean either (a) the display on
the Reuters Monitor Money Rates Service (or any successor service) on the page
specified in such Company Order (or any other page as may replace such page on
such service) for the purpose of displaying the London interbank rates of major
banks for the Designated LIBOR Currency (if "LIBOR Reuters" is specified in the
applicable Company Order), or (b) the display on Bridge Telerate, Inc. (or any
successor service) on the page specified in the applicable Company Order (or any
other page as may replace such page on such service) for the purpose of
displaying the London interbank rates of major banks for the Designated LIBOR
Currency (if "LIBOR Telerate" is specified in the applicable Company Order or
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable
Company Order as the method for calculating LIBOR).
ELEVENTH DISTRICT COST OF FUNDS RATE:
The term "Eleventh District Cost of Funds Rate" shall mean, with
respect to any 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
8
<PAGE> 9
Interest Determination Date falls as set forth under the caption "11th District"
on the display on Bridge Telerate, Inc. (or any successor service) on page 7058
("Telerate Page 7058") as of 11:00 A.M., San Francisco time, on such Eleventh
District Cost of Funds Rate Interest Determination Date. If such rate does not
appear on Telerate Page 7058 on such Eleventh District Cost of Funds Rate
Interest Determination Date, then the Eleventh District Cost of Funds Rate on
such Eleventh District Cost of Funds Rate Interest Determination Date shall be
the monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the Federal Home Loan Bank of San Francisco (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.
ELEVENTH DISTRICT COST OF FUNDS RATE INTEREST DETERMINATION DATE:
The term "Eleventh District Cost of Funds 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 Eleventh
District Cost of Funds Rate.
FEDERAL FUNDS RATE:
The terms "Federal Funds Rate" shall mean, with respect to any 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.
FEDERAL FUNDS RATE INTEREST DETERMINATION DATE:
The term "Federal Funds 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 Federal Funds Rate.
9
<PAGE> 10
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.
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.
HIGHEST LAWFUL RATE:
The term "Highest Lawful Rate" shall mean at the particular time in
question the maximum rate of interest which, under applicable law, the Holders
are then permitted to charge on the Subordinated Notes. If the maximum rate of
interest which, under applicable law, the Holders are permitted to charge on the
Subordinated Notes shall change after the date of this Indenture Supplement, the
Highest Lawful Rate shall be automatically increased or decreased, as the case
may be, from time to time as of the effective time of each change in the Highest
Lawful Rate without notice to the Company. For purposes of determining the
Highest Lawful Rate under the applicable law of the State of Texas, the
applicable rate ceiling shall be (a) the weekly rate ceiling described in and
computed in accordance with the provisions of Articles 5069.1D and 5069.1H.002,
Title 79, Revised Civil Statutes of Texas, 1925, as amended ("Art. 5069.1D") or
(b) if the
10
<PAGE> 11
parties subsequently contract as allowed by applicable law, the quarterly
ceiling or the annualized ceiling computed pursuant to Art. 5069.1D; provided,
however, that at any time the weekly rate ceiling, the quarterly ceiling or the
annualized ceiling shall be less than 18% per annum or more than 24% per annum,
the provisions of Section 1D.009 of said Art. 5069.1D shall control for purposes
of such determination, as applicable.
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.
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 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
11
<PAGE> 12
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.
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.
12
<PAGE> 13
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:
(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;
13
<PAGE> 14
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," 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 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
14
<PAGE> 15
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 any Interest
Determination Date relating 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.
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.
15
<PAGE> 16
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 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
16
<PAGE> 17
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, 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
EUR, Luxembourg and London), 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,
17
<PAGE> 18
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.
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 the
Treasury.
TREASURY BILLS:
The term "Treasury Bills" shall mean direct obligations of the United
States.
18
<PAGE> 19
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 "INVESTMENT RATE" 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/Auction High" 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/Auction High." 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.
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.
19
<PAGE> 20
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 C" 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 $400,000,000.
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 January 27, 2000, 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 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
20
<PAGE> 21
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.
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.
21
<PAGE> 22
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.
Section 4.09. Compliance with Law. It is the intent of the Company and
the Holders of the Subordinated Notes to conform to and contract in strict
compliance with applicable usury law from time to time in effect. All agreements
between the Holders of the Subordinated Notes and the Company are hereby limited
by the provisions of this Section 4.09 which shall override and control all such
agreements, whether now existing or hereafter arising and whether written or
oral. In no way, nor in any event or contingency (including but not limited to
prepayment, default, demand for payment, or acceleration of the maturity of any
obligation), shall the interest taken, reserved, contracted for, charged or
received under this Indenture Supplement or the Subordinated Notes or otherwise,
exceed the Highest Lawful Rate. If, from any possible construction of any
document, interest would otherwise be payable in excess of the Highest Lawful
Rate, any such construction shall be subject to the provisions of this Section
4.09 and such document shall be automatically reformed and the interest payable
shall be automatically reduced to the Highest Lawful Rate, without the necessity
of execution of any amendment or new document. If the Holders shall ever receive
anything of value which is characterized as interest under applicable law and
which would apart from this provision be in excess of the Highest Lawful Rate,
an amount equal to the amount which would have been excessive interest shall,
without penalty, be applied to the reduction of the principal amount owing on
the Subordinated Notes in the inverse order of its maturity and not to the
payment of interest, or refunded to the Company if and to the extent such amount
which would have been excessive exceeds such unpaid principal. The right to
accelerate the maturity of the Subordinated Notes does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and the Holders do not intend to charge or receive any unearned
interest in the event of acceleration. All interest paid or agreed to be paid to
the Holders shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full stated term (including any
renewal or extension) of the Subordinated Notes so that the amount of interest
on account of the Subordinated Notes does not exceed the Highest Lawful Rate.
[Remainder of page intentionally left blank.]
22
<PAGE> 23
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: /s/ Vicki A. Roberts
-------------------------------------
Vicki A. Roberts
Vice President and Treasurer
/s/ Drew F. Nachowiak
- ----------------------------------
Drew F. Nachowiak
Assistant Secretary
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
[SEAL]
Attest: By: /s/ John G. Jones
-------------------------------------
Name: John G. Jones
Title: Vice President
/s/ Dennis J. Roemlein
- ----------------------------------
Name: Dennis J. Roemlein
Title: Vice President
23
<PAGE> 24
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 26 day of January, 2000.
/s/ REBECCA L. ARREDONDO
-------------------------------------------
Notary Public in and for the State of Texas
Rebecca L. Arredondo
My commission expires: -------------------------------------------
Printed Name of Notary Public
5/10/03
- --------------------------
STATE OF TEXAS )
)
COUNTY OF HARRIS )
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared John G. Jones and Dennis J. Roemlein,
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 27 day of January, 2000.
/s/ CASSANDRA M. EDMONDSON
-------------------------------------------
Notary Public in and for the State of Texas
Cassandra M. Edmondson
My commission expires: -------------------------------------------
Printed Name of Notary Public
3/17/2003
- --------------------------
24
<PAGE> 25
EXHIBIT A
GLOBAL SUBORDINATED FIXED RATE NOTE
REGISTERED PRINCIPAL AMOUNT
NO. $
---------------
CENTEX CORPORATION
Subordinated Medium-Term Note, Series C
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>
<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
<PAGE> 26
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 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 a rate per annum from time to time equal to the lesser
of (i) the Highest Lawful Rate (as defined in the Indenture) or (ii) 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> 27
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> 28
[REVERSE OF GLOBAL SUBORDINATED FIXED RATE NOTE]
CENTEX CORPORATION
SUBORDINATED FIXED RATE MEDIUM-TERM NOTE, SERIES C
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 January __, 2000 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
4
<PAGE> 29
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 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
5
<PAGE> 30
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) 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
6
<PAGE> 31
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.
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.
It is the intent of the Company and the Holders of this Subordinated
Note to conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Holders of this
Subordinated Note and the Company are hereby limited by the provisions of this
paragraph which shall override and control all such agreements, whether now
existing or hereafter arising and whether written or oral. In no way, nor in any
event or contingency (including but not limited to prepayment, default, demand
for payment, or acceleration of the maturity of any obligation), shall the
interest taken, reserved, contracted for, charged or received under this
Subordinated Note or otherwise exceed the Highest Lawful Rate. If, from any
possible construction of any document, interest would otherwise be payable in
excess of the Highest Lawful Rate, any such construction shall be subject to the
provisions of this paragraph and such document shall be automatically reformed
and the interest payable shall be automatically reduced to the Highest Lawful
Rate, without the necessity of execution of any amendment or new document. If
the Holders of this Subordinated Note shall ever receive anything of value which
is characterized as interest under applicable law and which would apart from
this provision be in excess of the Highest Lawful Rate, an amount equal to the
amount which would have been excessive interest shall, without penalty, be
applied to the reduction of the principal amount owing on this Subordinated Note
in the inverse order of its maturity and not to the payment of interest, or
refunded to the Company if and to the extent such amount which would have been
excessive exceeds such unpaid principal. The right to accelerate the maturity of
this Subordinated Note does not include the right to accelerate any interest
which has not otherwise accrued on the date of such acceleration, and the
Holders of this
7
<PAGE> 32
Subordinated Note do not intend to charge or receive any unearned interest in
the event of acceleration. All interest paid or agreed to be paid to the Holders
of this Subordinated Note shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full stated term
(including any renewal or extension) of this Subordinated Note so that the
amount of interest on account of this Subordinated Note does not exceed the
Highest Lawful Rate.
8
<PAGE> 33
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> 34
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT
MIN ACT - ________Custodian_________
TEN ENT - as tenants by the entireties (Cust) (Minor)
Under Uniform Gifts to
JT TEN - as joint tenants with right of Minors Act
survivorship and not as tenants in _________________________
common State
Additional abbreviations may also be used though not in the above list.
---------------------
FOR VALUE RECEIVED the undersigned hereby sell(s) assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF
ASSIGNEE
- --------------------------------
- --------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- --------------------------------------------------------------------------------
the within 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.
10
<PAGE> 35
EXHIBIT B
GLOBAL SUBORDINATED FLOATING RATE NOTE
REGISTERED PRINCIPAL AMOUNT
NO. $
---------
CENTEX CORPORATION
Subordinated Medium-Term Note, Series C
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
INTEREST DETERMINATION DATES: [ ] Other:
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:
</TABLE>
<PAGE> 36
<TABLE>
<S> <C> <C>
INTEREST PAYMENT DATES: ANNEX ATTACHED (and incorporated
by reference herein): [ ] Yes [ ] No
RECORD DATES: OTHER/ADDITIONAL PROVISIONS
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 Date: [ ] Actual/360 for the period from
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 from time to time equal to the lesser
of (i) the Highest Lawful Rate (as defined in the Indenture) or (ii) 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
2
<PAGE> 37
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 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> 38
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> 39
[REVERSE OF GLOBAL SUBORDINATED FLOATING RATE NOTE]
CENTEX CORPORATION
SUBORDINATED FLOATING RATE MEDIUM-TERM NOTE, SERIES C
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 January __, 2000 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
5
<PAGE> 40
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 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
6
<PAGE> 41
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 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
7
<PAGE> 42
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.
It is the intent of the Company and the Holders of this Subordinated
Note to conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Holders of this
Subordinated Note and the Company are hereby limited by the provisions of this
paragraph which shall override and control all such agreements, whether now
existing or hereafter arising and whether written or oral. In no way, nor in any
event or contingency (including but not limited to prepayment, default, demand
for payment, or acceleration of the maturity of any obligation), shall the
interest taken, reserved, contracted for, charged or received under this
Subordinated Note or otherwise exceed the Highest Lawful Rate. If, from any
possible construction of any document, interest would otherwise be payable in
excess of the Highest Lawful Rate, any such construction shall be subject to the
provisions of this paragraph and such document shall be automatically reformed
and the interest payable shall be automatically reduced to the Highest Lawful
Rate, without the necessity of execution of any amendment or new document. If
the Holders of this Subordinated Note shall ever receive anything of value which
is characterized as interest under applicable law and which would apart from
this provision be in excess of the Highest Lawful Rate, an amount equal to the
amount which would have been excessive interest shall, without penalty, be
applied to the reduction of the principal amount owing on this Subordinated Note
in the inverse order of its maturity and not to the payment of interest, or
refunded to the Company if and to the extent such amount which would have been
excessive exceeds such unpaid principal. The right to accelerate the maturity of
this Subordinated Note does not include the right to accelerate any interest
which has not otherwise accrued on the date of such acceleration, and the
Holders of this Subordinated Note do not intend to charge or receive any
unearned interest in the event of acceleration. All interest paid or agreed to
be paid to the Holders of this Subordinated Note shall, to the extent permitted
by applicable law, be
8
<PAGE> 43
amortized, prorated, allocated and spread throughout the full stated term
(including any renewal or extension) of this Subordinated Note so that the
amount of interest on account of this Subordinated Note does not exceed the
Highest Lawful Rate.
9
<PAGE> 44
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.
10
<PAGE> 45
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT
MIN ACT - _______Custodian_______
TEN ENT - as tenants by the entireties (Cust) (Minor)
Under Uniform Gifts
JT TEN - as joint tenants with right of to Minors Act
survivorship and not as tenants in _______________________
common State
Additional abbreviations may also be used though not in the above list.
---------------------
FOR VALUE RECEIVED the undersigned hereby sell(s) assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF
ASSIGNEE
- --------------------------------
- --------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- --------------------------------------------------------------------------------
the within 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.
