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EXHIBIT 4.2
CENTEX CORPORATION
Issuer
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
Trustee
INDENTURE SUPPLEMENT NO. 1
Dated as of October 1, 1998
to
INDENTURE
Dated as of October 1, 1998
$200,000,000 Medium-Term Notes, Series A
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INDENTURE SUPPLEMENT NO. 1 ("Indenture Supplement"), dated as of
October 1, 1998, between CENTEX CORPORATION, a Nevada corporation (together
with its successors and assigns as provided in the Indenture referred to below,
the "Company"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national
banking association (together with its successors in trust thereunder as
provided in the Indenture referred to below, the "Trustee"), as trustee under
an Indenture dated as of October 1, 1998 (the "Indenture").
PRELIMINARY STATEMENT
Section 2.02 of the Indenture provides, among other things, that the
Company may, when authorized by its Board of Directors, and the Trustee may at
any time and from time to time, enter into a series supplement to the Indenture
for the purpose of authorizing one or more Series of Senior Debt Securities and
to specify certain terms of each such Series of Senior Debt Securities. The
Board of Directors of the Company has duly authorized the creation of a Series
of Senior Debt Securities with an aggregate principal amount of $200,000,000 to
be known as the Company's Medium-Term Notes, Series A (the "Notes"), and the
Company and the Trustee are executing and delivering this Indenture Supplement
in order to provide for the issuance of the Notes.
ARTICLE ONE
Definitions
Except to the extent such terms are otherwise defined in this
Indenture Supplement or the context clearly requires otherwise, all terms used
in this Indenture Supplement which are defined in the Indenture or the form of
Fixed Rate Note or Floating Rate Note attached hereto as Exhibits A and B,
respectively, either directly or by reference therein, shall have the meanings
assigned to them therein.
As used in this Indenture Supplement, the following terms shall have
the following meanings:
AMORTIZED FACE AMOUNT:
The term "Amortized Face Amount" of an Original Issue Discount Note,
as of the date that (i) the principal amount of such Note is to be repaid prior
to its Stated Maturity, whether upon declaration of acceleration, call for
redemption, repayment at the option of the Holder or otherwise, or (ii) any
consent, notice, request, direction, waiver or suit by the Noteholders shall be
deemed to be given, made or commenced under this Indenture, shall mean the
principal amount of such Note multiplied by its Issue Price plus the portion of
the difference between the dollar amount thus obtained and the principal amount
of such Note that has accreted at the Yield to maturity of such Note (computed
in accordance with generally accepted United States bond yield computation
principles) to such date, but in no event shall the Amortized Face Amount of an
Original Issue Discount Note exceed its principal amount stated in the
applicable Company Order.
AMORTIZING NOTE:
The term "Amortizing Note" shall mean a Note for which payments of
principal of and interest on such Note are made in installments over the life
of such Note, and unless otherwise specified in the applicable Company Order,
payments with respect to an Amortizing Note shall be applied first to interest
due and payable thereon and then to the reduction of the unpaid principal
amount thereof.
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AUTHORIZED AGENT:
The term "Authorized Agent" shall mean an agent of the Company
designated by an Officers' Certificate to give to the Trustee the information
specified in clause (a) of "Company Order" for the issuance of a Note.
BASIS POINT:
The term "Basis Point" shall mean one-one hundredth of a percentage
point.
CD RATE:
The term "CD Rate" shall mean, with respect to any CD Rate Interest
Determination Date, the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified in the applicable
Pricing Supplement as published in H.15(519) (as hereinafter defined) under the
heading "CD (secondary market)" or, if not so published by 3:00 P.M., New York
City time, on the related Calculation Date, the rate on such CD Rate Interest
Determination Date for negotiable United States dollar certificates of deposit
of the Index Maturity specified in the applicable Pricing Supplement as
published in H.15 Daily Update (as hereinafter defined), or such other
recognized electronic source used for the purpose of displaying such rate,
under the caption "CD (secondary market)." If such rate is not yet published in
H.15(519), H.15 Daily Update or another recognized electronic source by 3:00
P.M., New York City time, on the related Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the secondary market offered rates as
of 10:00 A.M., New York City time, on such CD Rate Interest Determination Date,
of three leading nonbank dealers in negotiable United States dollar
certificates of deposit in The City of New York (which may include the Agents
or their affiliates) selected by the Calculation Agent for negotiable United
States dollar certificates of deposit of major United States money center banks
for negotiable certificates of deposit with a remaining maturity closest to the
Index Maturity specified in the applicable Pricing Supplement in an amount that
is representative for a single transaction in that market at that time;
provided, however, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the CD Rate determined as of such CD
Rate Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
CD RATE INTEREST DETERMINATION DATE:
The term "CD Rate Interest Determination Date" shall mean the Interest
Determination Date relating to a Floating Rate Note for which the interest rate
is determined with reference to the CD Rate.
CMT RATE:
The term "CMT Rate" shall mean, with respect to any Interest
Determination Date relating to a Floating Rate Note for which the interest rate
is determined with reference to the CMT Rate, the rate displayed on the
Designated CMT Telerate Page under the caption "...Treasury Constant
Maturities...Federal Reserve Board Release H.15...Mondays Approximately 3:45
P.M.," under the column for the Designated CMT Maturity Index for (i) if the
Designated CMT Telerate Page is 7051, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
weekly or monthly average, as specified in the Company Order, for the week or
the month, as applicable, ended immediately preceding the week or the month, as
applicable, in which the related CMT Rate Interest Determination Date falls. If
such rate is no longer displayed on the relevant page or is not so displayed by
3:00 P.M., New York
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City time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for
the Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not so published by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date
with respect to such Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in H.15(519). If such information is not so provided by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate on
the CMT Rate Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market offered rates as of approximately 3:30 P.M., New York City
time, on such CMT Rate Interest Determination Date reported, according to their
written records, by three leading primary United States government securities
dealers in The City of New York (which may include the Agents or their
affiliates) (each, a "Reference Dealer") selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity
of approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index minus one year. If
the Calculation Agent is unable to obtain three such Treasury Note quotations,
the CMT Rate on such CMT Rate Interest Determination Date will be calculated by
the Calculation Agent and will be a yield to maturity based on the arithmetic
mean of the secondary market offered rates as of approximately 3:30 P.M., New
York City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event
of equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offered rates obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers so selected by the
Calculation Agent are quoting as mentioned herein, the CMT Rate determined as
of such CMT Rate Interest Determination Date will be the CMT Rate in effect on
such CMT Rate Interest Determination Date. If two Treasury Notes with an
original maturity as described in the second preceding sentence have remaining
terms to maturity equally close to the Designated CMT Maturity Index, the
Calculation Agent will obtain quotations for the Treasury Note with the shorter
remaining term to maturity.
CMT RATE INTEREST DETERMINATION DATE:
The term "CMT Rate Interest Determination Date" shall mean any
Interest Determination Date relating to a Floating Rate Note for which the
interest rate is determined with reference to the CMT Rate.
CALCULATION AGENT:
The term "Calculation Agent" for a particular Floating Rate Note shall
mean the Trustee, unless otherwise specified in the applicable Company Order.
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CALCULATION DATE:
The term "Calculation Date" shall, unless otherwise specified in the
applicable Company Order, mean with regard to any particular Interest
Determination Date, the earlier of (i) the tenth calendar day after such
Interest Determination Date, or, if any such day is not a Business Day, the
next day that is a Business Day, or (ii) the Business Day immediately preceding
the applicable Interest Payment Date or Maturity Date, as the case may be.
COMMERCIAL PAPER RATE:
The term "Commercial Paper Rate" for a particular Floating Rate Note,
unless otherwise indicated in the applicable Company Order, shall mean, with
respect to any Interest Determination Date, the Money Market Yield on such date
of the rate for commercial paper having the Index Maturity specified in such
Company Order, as such rate shall be published in H.15(519) under the caption
"Commercial Paper -- Nonfinancial" or, if not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on such Commercial
Paper Rate Interest Determination Date for commercial paper having the Index
Maturity specified in the applicable Company Order as published in H.15 Daily
Update, or such other recognized electronic source used for the purpose of
displaying such rate, under the caption "Commercial Paper-Nonfinancial." If
such rate is not yet published in H.15(519), H.15 Daily Update or another
recognized electronic source by 3:00 P.M., New York City time, on the related
Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date will be calculated by the Calculation Agent and
will be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York (which may include the Agents or their affiliates) selected by
the Calculation Agent for commercial paper having the Index Maturity specified
in the applicable Pricing Supplement placed for industrial issuers whose bond
rating is "Aa," or the equivalent, from a nationally recognized statistical
rating organization; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
COMMERCIAL PAPER RATE INTEREST DETERMINATION DATE:
The term "Commercial Paper Rate Interest Determination Date" shall
mean any Interest Determination Date relating to a Floating Rate Note for which
the interest rate is determined with reference to the Commercial Paper Rate.
COMMERCIAL PAPER RATE NOTES:
The term "Commercial Paper Rate Notes" shall mean Floating Rate Notes
which are specified in the applicable Company Order as bearing interest at an
interest rate calculated with reference to the Commercial Paper Rate.
COMPANY ORDER:
The term "Company Order" shall mean:
(a) a written order signed in the name of the Company by the Chairman
of the Board, the President or any Vice President and by the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee, to
authenticate a Note and to make it available for delivery, and specifying for
such Note the following information:
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(1) the name of the Person in which a Note to be issued and
authenticated shall be registered;
(2) the address of such Person;
(3) the taxpayer identification number of such Person;
(4) the principal amount of such Note and, if multiple Notes are
to be issued to such Person, the denominations of such Notes;
(5) the Issue Price of such Note;
(6) the Original Issue Date of such Note;
(7) the date upon which such Note is scheduled to mature and the
Final Maturity Date;
(8) if the Note is to be redeemable at the option of the Company,
the Initial Redemption Date and the date or dates on which, and the
price or prices at which, such Note is redeemable at the option of the
Company;
(9) if the Note is to be repayable prior to the Stated Maturity
at the option of the Holder, the date or dates on which, and the price
or prices at which, such Note is repayable at the option of the
Holder;
(10) if the Note is a Fixed Rate Note, the rate of interest on
such Note and the Interest Payment Dates, if other than March 1 and
September 1, and the Record Dates, if other than February 15 and
August 15;
(11) if the Note is an Original Issue Discount Note, its Yield to
Maturity;
(12) if such Note is an Amortizing Note, a table setting forth
the schedule of dates and amounts of payments of principal of and
interest on such Note or the formula for the amortization of principal
and/or interest;
(13) if the Note is a Reset Note, the Optional Interest Reset
Date and the formula, if any, for resetting the interest rate of a
Fixed Rate Note or the Spread and/or Spread Multiplier of a Floating
Rate Note;
(14) if the Note is a Floating Rate Note, its:
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(A) Initial Interest Rate (I) Interest Reset Dates
(B) Interest Rate Basis or Bases (J) Spread
(including any Designated LIBOR
Currency and Designated LIBOR
Page or any Designated CMT
Maturity Index and Designated CMT
Telerate Page)
(C) Index Maturity (K) Spread Multiplier
(D) Interest Determination Dates (L) Maximum Interest Rate
(E) Interest Reset Period (M) Minimum Interest Rate
(F) Initial Interest Reset Date (N) Interest Payment Dates
(G) Fixed Rate Commencement Date, if (O) Record Dates
applicable
(H) Fixed Interest Rate, if applicable
(15) If such Note is a Floating Rate Note, whether it is a
Regular Floating Rate Note or a Floating Rate/Fixed Rate Note;
(16) whether or not such Note is to be issued in the form of a
Global Note to the Depositary;
(17) the name and address of the Calculation Agent, if other than
the Trustee;
(18) if other than United States dollars or denominations of
$1,000 and integral multiples thereof, the authorized currency or
denominations in which Notes shall be issued; and
(19) all other information necessary for the issuance of such
Note not inconsistent with the provisions of this Indenture; or
(b) confirmation given to the Trustee by an officer of the Company
designated by an Officers' Certificate, by telephone, confirmed by telex or
facsimile or similar writing, of the information given to the Trustee by an
Authorized Agent for the issuance of a Note, and the written order of the
Company to authenticate such Note and to make it available for delivery.
COMPOSITE QUOTATIONS:
The term "Composite Quotations" shall mean the daily statistical
release "Composite 3:30 P.M. Quotations for U. S. Government Securities" or any
successor publication published by the Federal Reserve Bank of New York.
CONSOLIDATED NET TANGIBLE ASSETS:
The term "Consolidated Net Tangible Assets" shall mean the aggregate
amount of assets included on the most recent consolidated balance sheet of the
Company and its subsidiaries, less applicable reserves and other properly
deductible items and after deducting therefrom (a) all current liabilities and
(b) all goodwill, trade names, trademarks, patents, unamortized debt discount
and expense, and other like intangibles, all in accordance with generally
accepted accounting principles consistently applied.
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CUSIP:
The term "CUSIP" shall mean the registered trademark "Committee on
Uniform Securities Identification Procedures" or "CUSIP" and a unique system of
identification of each public issue of a security owned by the American Bankers
Association and administered by Standard and Poor's Corporation, as agent of
the American Bankers Association.
DEPOSITARY:
The term "Depositary" shall mean, unless otherwise specified by the
Company, The Depository Trust Company, New York, New York, or any successor
thereto registered as a Clearing Agency under the Securities and Exchange Act
of 1934, as amended, or any successor statute or regulation.
DESIGNATED CMT TELERATE PAGE:
The term "Designated CMT Telerate Page" shall mean the display on
Bridge Telerate, Inc. (or any successor service) on the page specified in the
applicable Pricing Supplement (or any other page as may replace such page on
such service) for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519) or, if no such page is specified in the applicable
Pricing Supplement, page 7052.
DESIGNATED CMT MATURITY INDEX:
The term "Designated CMT Maturity Index" shall mean the original
period to maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10,
20 or 30 years) specified in the applicable Pricing Supplement with respect to
which the CMT Rate will be calculated or, if no such maturity is specified in
the applicable Pricing Supplement, 2 years.
DESIGNATED LIBOR CURRENCY:
The term "Designated LIBOR Currency" shall mean the currency or
composite currency specified in the applicable Company Order as to which LIBOR
shall be calculated or, if no such currency or composite currency is specified
in the applicable Company Order, United States dollars.
DESIGNATED LIBOR PAGE:
The term "Designated LIBOR Page" shall mean either (a) the display on
the Reuters Monitor Money Rates Service (or any successor service) on the page
specified in such Company Order (or any other page as may replace such page on
such service) for the purpose of displaying the London interbank rates of major
banks for the Designated LIBOR Currency (if "LIBOR Reuters" is specified in the
applicable Company Order), or (b) the display on Bridge Telerate, Inc. (or any
successor service) on the page specified in the applicable Company Order (or
any other page as may replace such page on such service) for the purpose of
displaying the London interbank rates of major banks for the Designated LIBOR
Currency (if "LIBOR Telerate" is specified in the applicable Company Order or
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable
Company Order as the method for calculating LIBOR).
ELEVENTH DISTRICT COST OF FUNDS RATE:
The term "Eleventh District Cost of Funds Rate" shall mean, with
respect to any Interest Determination Date relating to a Floating Rate Note for
which the interest rate is determined with reference
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to the Eleventh District Cost of Funds Rate (an "Eleventh District Cost of
Funds Rate Interest Determination Date"), the rate equal to the monthly
weighted average cost of funds for the calendar month immediately preceding the
month in which such Eleventh District Cost of Funds Rate Interest Determination
Date falls as set forth under the caption "11th District" on the display on
Bridge Telerate, Inc. (or any successor service) on page 7058 ("Telerate Page
7058") as of 11:00 A.M., San Francisco time, on such Eleventh District Cost of
Funds Rate Interest Determination Date. If such rate does not appear on
Telerate Page 7058 on such Eleventh District Cost of Funds Rate Interest
Determination Date, then the Eleventh District Cost of Funds Rate on such
Eleventh District Cost of Funds Rate Interest Determination Date shall be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date. If the FHLB of San Francisco fails to announce the Index on
or prior to such Eleventh District Cost of Funds Rate Interest Determination
Date for the calendar month immediately preceding such Eleventh District Cost
of Funds Rate Interest Determination Date, the Eleventh District Cost of Funds
Rate determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect
on such Eleventh District Cost of Funds Rate Interest Determination Date.
FEDERAL FUNDS RATE:
The terms "Federal Funds Rate" shall mean, with respect to any
Interest Determination Date relating to a Floating Rate Note for which the
interest rate is determined with reference to the Federal Funds Rate (a
"Federal Funds Rate Interest Determination Date"), the rate on such date for
United States dollar federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)", as such rate is displayed on Bridge Telerate, Inc.
(or any successor service) on page 120 ("Telerate Page 120"), or, if such rate
does not appear on Telerate Page 120 or is not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on such Federal Funds
Rate Interest Determination Date for United States dollar federal funds as
published in H.15 Daily Update, or such other recognized electronic source used
for the purpose of displaying such rate, under the caption "Federal Funds
(Effective)." If such rate does not appear on Telerate Page 120 or is not yet
published in H.15(519), H.15 Daily Update or another recognized electronic
source by 3:00 P.M., New York City time, on the related Calculation Date, then
the Federal Funds Rate on such Federal Funds Rate Interest Determination Date
will be calculated by the Calculation Agent and will be the arithmetic mean of
the rates for the last transaction in overnight United States dollar federal
funds arranged by three leading brokers of federal funds transactions in The
City of New York (which may include the Agents or their affiliates) selected by
the Calculation Agent prior to 9:00 A.M., New York City time, on such Federal
Funds Rate Interest Determination Date; provided, however, that if the brokers
so selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date will be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
FINAL MATURITY DATE:
The term "Final Maturity Date" shall mean the date beyond which the
Stated Maturity of a particular Note may not be extended at the option of the
Company.
FIXED RATE AMORTIZING NOTE:
The term "Fixed Rate Amortizing Note" shall mean a Fixed Rate Note
which is an Amortizing Note.
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FIXED RATE NOTE:
The term "Fixed Rate Note" shall mean a Note which bears interest at a
fixed rate (which may be zero in the case of a Zero Coupon Note) specified in
the applicable Company Order.
FLOATING RATE NOTE:
The term "Floating Rate Note" shall mean a Note which bears interest
at a variable rate determined by reference to an interest rate formula, and
includes a CD Rate Note, a CMT Rate Note, a Commercial Paper Rate Note, an
Eleventh District Cost of Funds Rate Note, a Federal Funds Rate Note, a LIBOR
Note, a Prime Rate Note or a Treasury Rate Note.
FUNDED INDEBTEDNESS:
The term "Funded Indebtedness" shall mean notes, bonds, debentures or
other similar evidences of indebtedness for money borrowed which by its terms
matures at or is extendible or renewable at the option of the obligor to a date
more than 12 months after the date of the creation of such debt.
GLOBAL NOTE:
The term "Global Note" shall mean a single Note that is issued to
evidence Notes having identical terms and provisions, which is delivered to the
Depositary or pursuant to instructions of the Depositary and which shall be
registered in the name of the Depositary or its nominee.
H.15(519):
The term "H.15(519)" shall mean the weekly publication "Statistical
Release H.15(519), Selected Interest Rates" or any successor publication
published by the Board of Governors of the Federal Reserve System.
H.15 DAILY UPDATE:
The term "H.15 Daily Update" shall mean the daily update of H.15(519),
available through the world- wide-web site of the Board of Governors of the
Federal Reserve System at xxxx://xxx.xxx.xxx.xxx.xx/xxxxxxxx/x00/xxxxxx, or any
successor site or publication.
INDEX MATURITY:
The term "Index Maturity" of a particular Floating Rate Note shall
mean the period to Stated Maturity of the instrument or obligation with respect
to which the related Interest Rate Basis or Bases of such Floating Rate Note is
calculated, as specified in the applicable Company Order.
INITIAL INTEREST RATE:
The term "Initial Interest Rate" for a particular Floating Rate Note
shall mean the interest rate specified in the applicable Company Order as in
effect from the Original Issue Date of such Floating Rate Note to its first
Interest Reset Date.
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INITIAL REDEMPTION DATE:
The term "Initial Redemption Date" shall mean the earliest date, if
any, on which a particular Note shall be redeemable at the option of the
Company prior to the Stated Maturity of such Note, as specified in the
applicable Company Order.
INTEREST ACCRUAL PERIOD:
The term "Interest Accrual Period" for a particular Floating Rate Note
shall mean the period from the date of issue of such Floating Rate Note, or
from an Interest Reset Date, if any, to its next subsequent Interest Reset
Date.
INTEREST DETERMINATION DATE:
The term "Interest Determination Date" shall mean, with respect to the
CD Rate, the CMT Rate, the Commercial Paper Rate, the Federal Funds Rate and
the Prime Rate, the second Business Day immediately preceding the applicable
Interest Reset Date; the "Interest Determination Date" with respect to the
Eleventh District Cost of Funds Rate shall be the last working day of the month
immediately preceding the applicable Interest Reset Date on which the Federal
Home Loan Bank of San Francisco (the "FHLB of San Francisco") publishes the
Index; and the "Interest Determination Date" with respect to LIBOR shall be the
second London Business Day immediately preceding the applicable Interest Reset
Date, unless the Designated LIBOR Currency is British pounds sterling, in which
case the "Interest Determination Date" shall be the applicable Interest Reset
Date. With respect to the Treasury Rate, the "Interest Determination Date"
shall be the day in the week in which the applicable Interest Reset Date falls
on which day Treasury Bills are normally auctioned (Treasury Bills are normally
sold at an auction held on Monday of each week, unless such Monday is a legal
holiday, in which case the auction is normally held on the immediately
succeeding Tuesday although such auction may be held on the preceding Friday);
provided, however, that if an auction is held on the Friday of the week
preceding the applicable Interest Reset Date, the "Interest Determination Date"
shall be such preceding Friday; provided, further, that if the Interest
Determination Date would otherwise fall on an Interest Reset Date, then such
Interest Reset Date shall be postponed to the next succeeding Business Day. The
"Interest Determination Date" pertaining to a Floating Rate Note the interest
rate of which is determined by reference to two or more Interest Rate Bases
shall be the most recent Business Day which is at least two Business Days prior
to the applicable Interest Reset Date for such Floating Rate Note on which each
Interest Rate Basis is determinable. Each Interest Rate Basis shall be
determined as of such date, and the applicable interest rate shall take effect
on the applicable Interest Reset Date.
INTEREST PAYMENT DATE:
(a) The term "Interest Payment Date" shall mean with respect to a
Floating Rate Note, including a Floating Rate Amortizing Note, which has an
Interest Reset Date reset (1) daily, weekly or monthly: the third Wednesday of
each month or the third Wednesday of March, June, September and December of
each year, as specified in the applicable Company Order, (2) quarterly: the
third Wednesday of March, June, September and December of each year, as
specified in the applicable Company Order, (3) semiannually: the third
Wednesday of the two months of each year, as specified in the applicable
Company Order; (4) annually: the third Wednesday of the month of each year, as
specified in the applicable Company Order, and, in each case, the Maturity Date
of such Floating Rate Note and, with respect to defaulted interest on such
Floating Rate Note, the date established by the Company for the payment of such
defaulted interest. If any Interest Payment Date (other than at Maturity) for
any Floating Rate Note would fall on a day that is not a Business Day with
respect to such Floating Rate Note, such Interest Payment Date will be the
immediately following day that is a Business Day with respect to such Floating
Rate Note, except that, in the case of a LIBOR Note, if such Business Day with
respect to such Floating Rate Note is in the next succeeding calendar month,
such Interest Payment Date shall be the immediately preceding London Business
Day.
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(b) The term "Interest Payment Date" shall mean with respect to a
Fixed Rate Note, including a Fixed Rate Amortizing Note, each March 1 and
September 1, or such other dates which are specified in the applicable Company
Order during the period such Fixed Rate Note is outstanding, the Maturity Date
of such Fixed Rate Note, and with respect to defaulted interest on such Fixed
Rate Note, the date established by the Company for the payment of such
defaulted interest.
(c) Notwithstanding the foregoing, the first Interest Payment Date for
any Note originally issued between a Record Date and the next Interest Payment
Date shall be the Interest Payment Date following the next succeeding Record
Date.
INTEREST RATE:
(a) The term "Interest Rate" for a particular Floating Rate Note shall
mean (1) from the date of issue of such Floating Rate Note to the first
Interest Reset Date for such Floating Rate Note, the Initial Interest Rate, and
(2) each Interest Accrual Period commencing on or after such First Interest
Reset Date, the Base Rate with reference to the Index Maturity for such
Floating Rate Note as specified in the applicable Company Order plus or minus
the Spread, if any, multiplied by the Spread Multiplier, if any; PROVIDED that
in the event no Spread or Spread Multiplier is provided in such Company Order,
the Spread and Spread Multiplier shall be zero and one, respectively; PROVIDED,
FURTHER, in no event shall the Interest Rate be greater than the Maximum
Interest Rate, if any, or less than the Minimum Interest Rate, if any;
PROVIDED, FURTHER, the Interest Rate in effect for the ten days immediately
prior to Maturity will be the Interest Rate in effect on the tenth day
preceding such Maturity; and PROVIDED, FURTHER, the Interest Rate will in no
event be higher than the maximum rate permitted by Texas or other applicable
law, as the same may be modified by United States federal laws of general
application.
(b) The term "Interest Rate" for a particular Fixed Rate Note shall
mean the interest rate specified in the applicable Company Order.
INTEREST RATE BASIS:
The term "Interest Rate Basis" shall mean with respect to (a) CD Rate
Notes, the CD Rate, (b) CMT Rate Notes, the CMT Rate, (c) Commercial Paper Rate
Notes, the Commercial Paper Rate, (d) Eleventh District Cost of Funds Note, the
Eleventh District Cost of Funds Rate, (e) Federal Funds Rate Notes, the Federal
Funds Rate, (f) LIBOR Notes, LIBOR, (g) Prime Rate Notes, the Prime Rate, (h)
Treasury Rate Notes, the Treasury Rate, and (i) any other Floating Rate Note,
the interest rate formula which determines the variable rate at which such Note
bears interest.
INTEREST RESET DATE:
The term "Interest Reset Date" shall mean, in the case of a Floating
Rate Note specified in the applicable Company Order as being reset (a) daily:
each Business Day; (b) weekly: the Wednesday of each week (with the exception
of weekly reset Treasury Rate Notes which reset the Tuesday of each week,
except as specified below); (c) monthly: the third Wednesday of each month
(with the exception of monthly reset Floating Rate Notes as to which the
Eleventh District Cost of Funds Rate is an applicable Interest Rate Basis which
will reset on the first calendar day of the month); (d) quarterly: the third
Wednesday of March, June, September and December; (e) semiannually: the third
Wednesday of the two months specified in the applicable Company Order; and (f)
annually: the third Wednesday of the month specified in the applicable
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Company Order. If any Interest Reset Date for a Floating Rate Note would
otherwise be a day which is not a Business Day, such Interest Reset Date shall
be postponed to the next succeeding day that is a Business Day, except that in
the case of a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding
London Business Day. If, in the case of a Treasury Rate Note, an Interest Reset
Date shall fall on a day on which the Treasury auctions Treasury Bills, then
such Interest Reset Date shall instead be the first Business Day immediately
following such auction.
INTEREST RESET PERIOD:
The term "Interest Reset Period" shall mean for:
(a) each Floating Rate Note on which interest is reset
monthly, quarterly, semiannually or annually, and each Fixed Rate
Note, the period:
(1) beginning on and including the Original Issue Date of
such Note or the most recent Interest Payment Date on which
interest was paid on such Note, and
(2) ending on but not including the next Interest Payment
Date or, for the last Interest Reset Period, the Maturity
Date, of such Note;
(b) each Floating Rate Note on which interest is reset daily
or weekly, the period:
(1) beginning on and including the Original Issue Date of
such Floating Rate Note, or beginning on but excluding the
most recent Record Date through which interest was paid on
such Note, and
(2) ending on and including the next Record Date or, for
the last Interest Reset Period, ending on but excluding the
Maturity Date, of such Note;
PROVIDED, HOWEVER, that the first Interest Reset Period for any Note which has
its Original Issue date after a Record Date and prior to its next Interest
Payment Date, shall begin on and include such Original Issue Date and (i) end
on and include the next Record Date for Floating Rate Notes on which interest
is reset daily or weekly, and (ii) end on but not include the second Interest
Payment Date after the Original Issue Date for all other Notes.
ISSUE PRICE:
The term "Issue Price" shall mean the price expressed as a percentage
of the aggregate principal amount of a Note at which such Note is issued.
LIBOR:
The term "LIBOR" for a particular Floating Rate Note, unless otherwise
indicated in the applicable Company Order, shall mean, with respect to any
LIBOR Interest Determination Date, the rate determined:
(i) With respect to any LIBOR Interest Determination Date,
LIBOR shall be either: (a) if "LIBOR Telerate" is specified in the
applicable Company Order or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified in the applicable Company Order as the method
for calculating LIBOR, the rate for deposits in the Designated LIBOR
Currency having the Index Maturity specified in such Company Order,
commencing on such Interest Reset Date, that appears on the Designated
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LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date; or (b) if "LIBOR Reuters" is specified in the
applicable Pricing Supplement, the arithmetic mean of the offered
rates (unless the Designated LIBOR Page by its terms provides only for
a single rate, in which case such single rate shall be used) for
deposits in the Designated LIBOR Currency having the Index Maturity
specified in such Pricing Supplement, commencing on the applicable
Interest Reset Date, that appear (or, if only a single rate is
required as aforesaid, appears) on the Designated LIBOR Page as of
11:00 A.M., London time, on such LIBOR Interest Determination Date. If
fewer than two such offered rates so appear, or if no such rate so
appears, as applicable, LIBOR on such LIBOR Interest Determination
Date shall be determined in accordance with the provisions described
in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear, or no rate appears, as the
case may be, on the Designated LIBOR Page as specified in clause (i)
above, the Calculation Agent will request the principal London offices
of each of four major reference banks (which may include affiliates of
the Agents) in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Designated LIBOR Currency for the period
of the Index Maturity specified in the applicable Pricing Supplement,
commencing on the applicable Interest Reset Date, to prime banks in
the London interbank market at approximately 11:00 A.M., London time,
on such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in the Designated
LIBOR Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date shall be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date shall be the arithmetic mean of the
rates quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by three
major banks (which may include affiliates of the Agents) in such
Principal Financial Center selected by the Calculation Agent for loans
in the Designated LIBOR Currency to leading European banks, having the
Index Maturity specified in the applicable Company Order and in a
principal amount that is representative for a single transaction in
the Designated LIBOR Currency in such market at such time; provided,
however, that if the banks so selected by the Calculation Agent are
not quoting as mentioned in this sentence, LIBOR determined as of such
LIBOR Interest Determination Date shall be LIBOR in effect on such
LIBOR Interest Determination Date.
LIBOR INTEREST DETERMINATION DATE:
The term "LIBOR Interest Determination Date" shall mean the Interest
Determination Date pertaining to a LIBOR Note.
LIBOR NOTES:
The term "LIBOR Notes" shall mean Floating Rate Notes which are
specified in the applicable Company Order as bearing interest at an interest
rate calculated with reference to LIBOR.
LONDON BUSINESS DAY:
The term "London Business Day" shall mean any day on which dealings in
the Designated LIBOR Currency are transacted in the London interbank market.
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MATURITY DATE:
The term "Maturity Date," when used with respect to any Note, shall
mean the date on which the principal of such Note or an installment of
principal becomes due and payable in accordance with its terms and the terms of
this Indenture as therein or herein provided, whether at Stated Maturity, upon
declaration of acceleration, call for redemption, repayment at the option of
the Holder or otherwise.
MAXIMUM INTEREST RATE:
The term "Maximum Interest Rate" shall mean the maximum rate of
interest, if any, which may be applicable to any Floating Rate Note during any
Interest Accrual Period as specified in the applicable Company Order.
MINIMUM INTEREST RATE:
The term "Minimum Interest Rate" shall mean the minimum rate of
interest, if any, which may be applicable to any Floating Rate Note during any
Interest Accrual Period as specified in the applicable Company Order.
MONEY MARKET YIELD:
The term "Money Market Yield" shall be the yield (expressed as a
percentage) calculated in accordance with the following formula:
Money Market Yield = [(D x 360)/(360 - (D x M))] x 100
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the applicable Interest Reset Period.
NOTEHOLDER; HOLDER:
The terms "Noteholder" or "Holder" shall mean any Person in whose name
at the time a particular Note is registered in the register of the Company kept
for that purpose in accordance with the terms hereof.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" when used with respect to the
Company, shall mean a certificate signed by the Chairman of the Board, the
President or any Vice President and by the Secretary or an Assistant Secretary
of the Company.
OPTIONAL INTEREST RESET DATE:
The term "Optional Interest Reset Date" shall mean each date on which
the interest rate on a Fixed Rate Reset Note or the Spread and/or Spread
Multiplier of a Floating Rate Reset Note may be reset at the option of the
Company.
ORIGINAL ISSUE DATE:
The term "Original Issue Date" shall mean for a particular Note, or
portions thereof, the date upon which it, or such portion, was issued by the
Company pursuant to this Indenture or any indenture supplemental thereto and
authenticated by the Trustee (other than in connection with a transfer,
exchange or substitution).
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ORIGINAL ISSUE DISCOUNT NOTE:
The term "Original Issue Discount Note" shall mean (i) a Note that has
a "stated redemption price at maturity" that exceeds its "issue price", each as
defined for United States federal income tax purposes, by at least 0.25% of its
stated redemption price at maturity multiplied by the number of complete years
from the Original Issue Date to the Stated Maturity for such Note (or in the
case of a Note that provides for payment of any amount other than the
"qualified stated interest", as defined for United States federal income tax
purposes, prior to maturity, the weighted average maturity of the Note) and
(ii) any other Note designated by the Company in the applicable Company Order
as issued with original issue discount for United States federal income tax
purposes.
PERSON:
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
PRIME RATE:
The term "Prime Rate" for a particular Floating Rate Note, unless
otherwise indicated in the applicable Company Order, shall mean, with respect
to any Prime Rate Interest Determination Date, the rate on such date as
published in H.15(519) under the caption "Bank Prime Loan" or, if not published
by 3:00 P.M., New York City time, on the related Calculation Date, the rate on
such Prime Rate Interest Determination Date as published in H.15 Daily Update,
or such other recognized electronic source used for the purpose of displaying
such rate, under the caption "Bank Prime Loan." If such rate is not yet
published in H.15(519), H.15 Daily Update or another recognized electronic
source by 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page (as
hereinafter defined) as such bank's prime rate or base lending rate as of 11:00
A.M., New York City time, on such Prime Rate Interest Determination Date. If
fewer than four such rates appear on the Reuters Screen USPRIME1 Page for such
Prime Rate Interest Determination Date, then the Prime Rate shall be the
arithmetic mean of the prime rates or base lending rates quoted on the basis of
the actual number of days in the year divided by a 360-day year as of the close
of business on such Prime Rate Interest Determination Date by four major money
center banks (which may include affiliates of the Agents) in The City of New
York selected by the Calculation Agent. If fewer than four such quotations are
so provided, then the Prime Rate shall be the arithmetic mean of four prime
rates quoted on the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Rate Interest
Determination Date as furnished in The City of New York by the major money
center banks, if any, that have provided such quotations and by a reasonable
number of substitute banks or trust companies (which may include affiliates of
the Agents) to obtain four such prime rate quotations, provided such substitute
banks or trust companies are organized and doing business under the laws of the
United States, or any State thereof, each having total equity capital of at
least $500 million and being subject to supervision or examination by Federal
or State authority, selected by the Calculation Agent to provide such rate or
rates; provided, however, that if the banks or trust companies so selected by
the Calculation Agent are not quoting as mentioned in this sentence, the Prime
Rate determined as of such Prime Rate Interest Determination Date will be the
Prime Rate in effect on such Prime Rate Interest Determination Date.
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PRIME RATE NOTES:
The term "Prime Rate Notes" shall mean Floating Rate Notes which are
specified in the applicable Company Order as bearing interest at an interest
rate calculated with reference to the Prime Rate.
PRINCIPAL AMOUNT:
The term "principal amount" with respect to any Note shall mean the
principal amount thereof set forth in the applicable Company Order; PROVIDED
that in the case of any Original Issue Discount Note, its principal amount as
of (i) any date that the principal amount of such Note is to be repaid prior to
its Stated Maturity, whether upon declaration of acceleration, call for
redemption, repayment at the option of the Noteholder or otherwise, or (ii) any
date that any consent, notice, request, direction, waiver or suit by the
Noteholders shall be deemed to be given, made or commenced under this
Indenture, such term shall mean the Amortized Face Amount of such Note as of
such date.
PRINCIPAL FINANCIAL CENTER:
The term "Principal Financial Center" shall mean the capital city of
the country to which the Designated LIBOR Currency relates (or, in the case of
ECU, Luxembourg), except that with respect to United States dollars, Australian
dollars, Canadian dollars, Deutsche marks, Dutch guilders, Portuguese escudos,
South African rand and Swiss francs, the "Principal Financial Center" shall be
The City of New York, Sydney, Toronto, Frankfurt, Amsterdam, London,
Johannesburg and Zurich, respectively
RECORD DATE:
The term "Record Date" shall mean for the Interest Payment Date for
the payment of interest for an Interest Reset Period for a particular Note,
unless otherwise specified in the applicable Company Order, (a) the day which
is fifteen calendar days immediately prior to such Interest Payment Date,
whether or not such day is a Business Day, (b) the Maturity Date of such Note,
unless such Maturity Date for a Fixed Rate Note is a January 1 or a July 1, in
which event the Record Date will be as provided in clause (a), and (c) a date
which is not less than five Business Days immediately preceding the Interest
Payment Date of defaulted interest on such Note established by notice given by
first-class mail by or on behalf of the Company to the Holder of such Note not
less than fifteen calendar days prior to such Interest Payment Date.
REDEMPTION DATE:
The term "Redemption Date" for a Note shall mean the date fixed for
the redemption of such Note in accordance with the provisions of this
Indenture.
RESET NOTE:
The term "Reset Note" shall mean a Fixed Rate Note, with respect to
which the Company has the option to reset the interest rate, and a Floating
Rate Note, with respect to which the Company has the option to reset the Spread
and/or Spread Multiplier.
REUTERS SCREEN USPRIME1 PAGE:
The term "Reuters Screen USPRIME1" shall mean the display designated
as page "USPRIME1" on the Reuters Monitor Money Rate Service (or such other
page which may replace the USPRIME1 page on such service) for the purpose of
displaying the prime rate or base lending rate of major United States banks.
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SPREAD:
The term "Spread" applicable to a particular Floating Rate Note shall
mean the number of Basis Points to be added to or subtracted from the related
Interest Rate Basis or Bases applicable to such Floating Rate Note as specified
in the applicable Company Order, used in the calculation of the Interest Rate
for such Floating Rate Note.
SPREAD MULTIPLIER:
The term "Spread Multiplier" applicable to a particular Floating Rate
Note shall mean the percentage of the related Interest Rate Basis or Bases
applicable to such Floating Rate Note as specified in the applicable Company
Order, used in the calculation of the Interest Rate for such Floating Rate
Note.
STATED MATURITY:
The term "Stated Maturity," when used with respect to any Note, shall
mean the date specified in such Note as the date on which the principal of such
Note is due and payable.
TREASURY:
The term "Treasury" shall mean the United States Department of
Treasury.
TREASURY BILLS:
The term "Treasury Bills" shall mean direct obligations of the United
States.
TREASURY RATE:
The term "Treasury Rate" for a particular Floating Rate Note, unless
otherwise indicated in the applicable Company Order, shall mean, with respect
to any Treasury Rate Interest Determination Date, the rate from the auction
held on such Treasury Rate Interest Determination Date (the "Auction") of
Treasury Bills having the Index Maturity specified in the applicable Company
Order under the caption "AVGE INVEST YIELD" on the display on Bridge Telerate,
Inc. (or any successor service) on page 56 ("Telerate Page 56") or page 57
("Telerate Page 57") or, if not so published by 3:00 P.M., New York City time,
on the related Calculation Date, the auction average rate of such Treasury
Bills (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced by
the United States Department of the Treasury. In the event that the results of
the Auction of Treasury Bills having the Index Maturity specified in the
applicable Company Order are not so published by 3:00 P.M., New York City time,
on the related Calculation Date, or if no such Auction is held, then the
Treasury Rate shall be the rate (expressed as a bond equivalent on the basis of
a year of 365 or 366 days, as applicable, and applied on a daily basis) on such
Treasury Rate Interest Determination Date of Treasury Bills having the Index
Maturity specified in the applicable Company Order as published in H.15(519)
under the caption "U.S. Government Securities/Treasury Bills/Secondary Market"
or, if not yet published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on such Treasury Rate Interest Determination Date of
such Treasury Bills as published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying such rate, under the
caption "U.S. Government Securities/Treasury Bills/Secondary Market." If such
rate is not yet published in H.15(519), H.15 Daily Update or another recognized
electronic source, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 X.X.,
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Xxx Xxxx Xxxx time, on such Treasury Rate Interest Determination Date, of three
leading primary United States government securities dealers (which may include
the Agents or their affiliates) selected by the Calculation Agent, for the
issue of Treasury Bills with a remaining maturity closest to the Index Maturity
specified in the applicable Company Order; provided, however, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date shall be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
TREASURY RATE NOTES:
The term "Treasury Rate Notes" shall mean Floating Rate Notes which
are specified in the applicable Company Order as bearing interest at an
interest rate calculated with reference to the Treasury Rate.
TRUSTEE:
The term "Trustee" shall mean Chase Bank of Texas, National
Association and shall also include any successor Trustee.
YIELD TO MATURITY:
The term "Yield to Maturity" shall mean for a particular Note the
yield to maturity of such Note, computed in accordance with generally accepted
United States bond yield computation principles and expressed as a percentage,
specified in the applicable Company Order.
ZERO COUPON NOTE:
The term "Zero Coupon Note" means a Note issued at a price
representing a discount from the principal amount payable at maturity and
bearing a zero fixed rate of interest.
ARTICLE TWO
Terms and Issuance of the Notes
Section 2.01. Issuance and Designation. A Series of Senior Debt
Securities which shall be designated as the Company's "Medium-Term Notes,
Series A" shall be executed, authenticated and delivered from time to time in
accordance with the provisions of, and shall in all respects be subject to, the
terms, conditions and covenants of, the Indenture and this Indenture Supplement
(including the form of Notes set forth in Exhibits A and B). The aggregate
principal amount of the Notes which may be authenticated and delivered under
the Indenture Supplement shall not, except as permitted by the provisions of
the Indenture, exceed $200,000,000.
Section 2.02. Form and Other Terms of Notes; Incorporation of Terms.
(a) Subject to subsection (b) below, the Notes shall be in the form attached
hereto as Exhibits A and B, respectively. The Notes shall be registered in such
names, shall be in such amounts and shall have such Original Issue Dates,
Interest Rates, Maturity Dates, Redemption Dates, if any, Initial Redemption
Percentages, if any, and Annual Redemption Percentage Reductions, if any, and
such other terms as are communicated by the Company to the Trustee in
accordance with the Administrative Procedures described in the Distribution
Agreement, dated October 21, 1998, between the Company and the agents named
therein. The terms of such Notes are herein incorporated by reference and are
part of this Indenture Supplement.
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(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, 000 X. 00xx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
ARTICLE THREE
Additional Covenants
Section 3.01. Limitation on Liens. The following provisions shall
apply to the Notes unless specifically otherwise provided in a series
supplement.
(a) The Company will not itself, and will not permit any subsidiary
(other than Centex Financial Services, Inc. and its subsidiaries) to, issue,
assume or guarantee any indebtedness for borrowed money if such borrowed money
is secured by a mortgage, pledge, security interest, lien or other encumbrance
(any such mortgage, pledge, security interest, lien or other encumbrance being
hereinafter in this Section 3.01 referred to as a "Lien") upon or with respect
to any of the properties or assets of the Company or any such subsidiary or on
any shares of capital stock or other equity interests of any subsidiary that
owns property or assets (other than Centex Financial Services, Inc. and its
subsidiaries), whether, in each case, owned at the date of this Indenture
Supplement or thereafter acquired, unless the Company makes effective provision
whereby the Notes shall be secured by such Lien equally and ratably with any
and all other borrowed money thereby secured; provided, however, that the
foregoing restrictions shall not be applicable to:
(i) Any Lien existing on any of the Company's properties or
assets or shares of capital stock or other equity interests at the
date of this Indenture Supplement;
(ii) Any Lien created by a subsidiary in favor of the Company
or any wholly-owned subsidiary;
(iii) Any Lien on any asset of any corporation or other
entity (or on any accession or improvement to such asset or any
proceeds thereof) existing at the time such corporation or other
entity becomes a subsidiary;
(iv) Any Lien on any asset of any corporation or other entity
(or on any accession or improvement to such asset or any proceeds
thereof) existing at the time such corporation or other entity is
merged or consolidated with or into the Company or a subsidiary;
(v) Any Lien on any asset existing at the time of acquisition
thereof (or on any accession or improvement to such asset or any
proceeds thereof) by the Company or any subsidiary;
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(vi) Any Lien on any asset (or on any accession or
improvement to such asset or any proceeds thereof) securing
Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such asset or the making of any
improvement thereof; provided that such Lien attaches to such asset
concurrently with or within 180 days after the acquisition thereof or
the making of such improvement;
(vii) Any Lien incurred in connection with pollution control,
industrial revenue or any similar financing;
(viii) Any Lien arising out of the refinancing, extension,
renewal or replacement of any of the Liens permitted by any of clauses
(i) through (vii) above; provided that such Indebtedness is not
increased and is not secured by any additional assets; and
(ix) any Lien imposed by law.
(b) Notwithstanding the provisions of subsection (a) of this Section
3.01, the Company or any subsidiary may issue, assume or guarantee indebtedness
for borrowed money secured by a Lien which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with all other
such secured borrowings of the Company and its subsidiaries and the
Attributable Debt (as defined below) in respect of Sale and Lease-Back
Transactions (as defined in Section 3.02) existing at such time (other than
Sale and Lease-Back Transactions not subject to the limitation contained in
Section 3.02), does not at the time exceed twenty percent (20%) of the
Consolidated Net Tangible Assets of the Company and its subsidiaries, as shown
on the audited consolidated balance sheet contained in the latest annual report
to stockholders of the Company. The term "Attributable Debt" as used in this
paragraph shall mean, as of any particular time, the present value of the
obligation of a lessee for rental payments during the remaining term of any
lease (including any period for which such lease has been extended or may, at
the option of the lessor, be extended).
Section 3.02. Limitation on Sale and Lease-Back Transactions. The
Company will not, nor will it permit any subsidiary to, enter into any
arrangement with any person (other than the Company) providing for the leasing
by the Company or a subsidiary of any of its properties or assets (except for
temporary leases for a term of not more than three (3) years and except for
sales and leases of model homes), which property has been or is to be sold or
transferred by the Company or such subsidiary to such person (herein referred
to as a "Sale and Lease-Back Transaction"), unless (a) the net proceeds to the
Company or such subsidiary from such sale or transfer equal or exceed the fair
value (as determined by the Board of Directors, the Chairman of the Board, the
Vice Chairman, the President or the principal financial officer of the Company)
of the property so leased, (b) the Company or such subsidiary would be entitled
to incur Indebtedness secured by a Lien on the property to be leased pursuant
to Section 3.01, (c) the Company shall, and in any such case the Company
covenants that it will, apply an amount equal to the fair value (as determined
by the Board of Directors, the Chairman of the Board, the Vice Chairman, the
President or the principal financial officer of the Company) of the property so
leased to the retirement (other than any mandatory retirement), within 180 days
of the effective date of any such Sale and Lease-Back Transaction, of Funded
Indebtedness of the Company, (d) such Sale and Lease-Back Transaction relates
to a sale which occurred within 180 days from the date of acquisition of such
property by the Company or a subsidiary or the date of the completion of
construction or commencement of full operations on such property, whichever is
later, or (e) such transaction was consummated prior to the date of this
Indenture Supplement.
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ARTICLE FOUR
Defeasance
Section 4.01. Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at any time, with respect to the Notes, elect to
have either Section 13.01 of the Indenture or Section 4.03 of this Indenture
Supplement be applied to all outstanding Notes upon compliance with the
conditions set forth in Article Thirteen of the Indenture and below in this
Article Four.
Section 4.02. Legal Defeasance. Upon the Company's exercise under
Section 4.01 of the option applicable to Section 13.01 of the Indenture, the
Company may terminate its obligations under the Notes, the Indenture and this
Indenture Supplement by complying with the terms and conditions of Section
13.01 of the Indenture; provided, however, that the Opinion of Counsel
delivered to the Trustee will also state that either (A) the Company has
received from, or there has been published by, the Internal Revenue Service, a
ruling or (B) since the date hereof, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the holders of the outstanding
Notes will not recognize income, gain or loss for federal income tax purposes
as a result of such defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
Section 4.03. Covenant Defeasance. Upon the Company's exercise under
Section 4.01 of the option applicable to this Section 4.03, the Company shall
be released from its obligations under the covenants contained in Article Three
of this Indenture Supplement with respect to the outstanding Notes on and after
the date the conditions set forth below are satisfied ("Covenant Defeasance"),
and the Notes shall thereafter be deemed not "outstanding" for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default, but, except as
specified above, the remainder of the Indenture and such Notes shall be
unaffected thereby. In addition, the Company's exercise under Section 4.01 of
the option applicable to this Section 4.03 shall not constitute an Event of
Default.
Section 4.04. Conditions to Covenant Defeasance. The following shall
be the conditions to the application of Section 4.03 to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds in trust solely for the benefit of the holders of such Notes for
that purpose, money or direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America
for the payment of which guarantee or obligation the full faith and
credit of the United States is pledged ("U.S. Government Obligations")
maturing as to principal and interest in such amounts and at such
times as are sufficient, as verified in a Certificate of a Firm of
Independent Public Accountants, without consideration of any
reinvestment of such interest, to pay principal of and interest or
sinking funds on the outstanding Notes to maturity or redemption as
the case may be, provided that the Trustee or any paying agent shall
have been irrevocably instructed to apply such money or the proceeds
of such U.S. Government Obligations to the payment of said principal
and
-21-
23
interest and said sinking fund with respect to the Notes. The Company may make
an irrevocable deposit pursuant to this Section 4.04 only if at such time the
Company shall have delivered to the Trustee and any such paying agent an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions herein precedent to the satisfaction and discharge of this Indenture
have been complied with and the Opinion of Counsel further states that the
making of such deposit (i) does not contravene or violate any provision of any
indenture, mortgage, loan agreement or other similar agreement known to such
counsel to which the Company is a party or by which it or any of its property
is bound, (ii) does not require registration by the deposit referred to above
under the Investment Company Act of 1940, as amended, and (iii) to the effect
that the holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax in the same amount, in the same manner and at the
same times as would have been the case if such defeasance had not occurred.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.06, 2.08, 5.01, 5.02, 5.05, 6.01, 8.06, 8.10, 13.04 and 13.05 of the
Indenture shall survive until the Notes are no longer outstanding. Thereafter,
the Company's obligations in Section 8.06, 13.04 and 13.05 of the Indenture
shall survive.
ARTICLE FIVE
Miscellaneous
Section 5.01. Ratification of Indenture. As supplemented by this
Indenture Supplement, the Indenture is in all respects ratified and confirmed
and the Indenture as so supplemented by this Indenture Supplement shall be
read, taken and construed as one and the same instrument.
Section 5.02. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture Supplement by any of the provisions
of the Trust Indenture Act, such required provisions shall control.
Section 5.03. Effect of Headings. The article and section headings
herein are included for convenience only and shall not affect the construction
hereof.
Section 5.04. Counterparts. This Indenture Supplement may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 5.05. Severability. In case any provision of this Indenture
Supplement or in the Senior Notes shall be found invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 5.06. Benefits of Indenture Supplement. Nothing in this
Indenture Supplement or in the Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture Supplement.
Section 5.07. Acceptance of Trusts. Chase Bank of Texas, National
Association hereby accepts the trusts in this Indenture Supplement declared and
provided, upon the terms and conditions herein and in the Indenture set forth.
-22-
24
Section 5.08. Governing Law. This Indenture Supplement and each Note
issued hereunder shall be deemed to be a contract made under the laws of the
State of Texas, and for all purposes shall be construed in accordance with the
laws of said State.
[Remainder of page intentionally left blank.]
-23-
25
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Indenture Supplement to be duly executed by their respective officers thereunto
duly authorized and their respective seals duly attested to be hereunto affixed
all as of the day and year first above written.
CENTEX CORPORATION
[SEAL]
Attest: By:
-------------------------------------
Xxxxx X. Xxxxxxx
Vice President and Treasurer
----------------------------------
Xxxx X. Xxxxxxxxx
Assistant Secretary
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
[SEAL]
Attest: By:
-------------------------------------
Name:
Title:
----------------------------------
Name:
Title:
-00-
00
XXXXX XX XXXXX ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Xxxxx X. Xxxxxxx and Xxxx X. Xxxxxxxxx,
known to me to be the persons and officers whose names are subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said CENTEX CORPORATION, a Nevada corporation, and that they executed the same
as the act of said corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of October,
1998.
---------------------------------------------
Notary Public in and for the State of Texas
My commission expires: ---------------------------------------------
Printed Name of Notary Public
------------------------------
STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared ________________ and ________________,
known to me to be the persons and officers whose names are subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association,
and that they executed the same as the act of said national banking association
for the purposes and consideration therein expressed, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of October,
1998.
---------------------------------------------
Notary Public in and for the State of Texas
My commission expires: ---------------------------------------------
Printed Name of Notary Public
------------------------------
-25-
27
EXHIBIT A
GLOBAL FIXED RATE NOTE
REGISTERED PRINCIPAL AMOUNT
NO.______________ $
CENTEX CORPORATION
Medium-Term Note, Series A
Fixed Rate
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation, 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx ("DTC"), to Centex Corporation, a Nevada corporation (herein called
the "Company," which term includes any successor person under the Indenture
referred to on the reverse hereof), or its agent for registration of transfer,
exchange or payment, and any Note issued is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Notes in
certificated form, this Note may not be transferred except as a whole by DTC to
a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by
DTC or any such nominee to a successor of DTC or a nominee of such successor of
DTC.
The following summary of terms is subject to the provisions set forth
below:
CUSIP No.: OPTION TO ELECT REPAYMENT: [ ] Yes [ ] No
ORIGINAL ISSUE DATE(S): OPTIONAL REPAYMENT DATE: [ ] Yes [ ] No
PRINCIPAL AMOUNT: CURRENCY:
STATED MATURITY DATE: OPTIONAL INTEREST RESET: [ ] Yes [ ] No
INTEREST RATE: OPTIONAL INTEREST RESET DATES:
INTEREST PAYMENT DATES: ORIGINAL ISSUE
DISCOUNT NOTE: [ ] Yes [ ] No
RECORD DATES: ISSUE PRICE (percentage of principal):
OPTIONAL REDEMPTION: [ ] Yes [ ] No YIELD TO MATURITY:
INITIAL REDEMPTION DATE:
AMORTIZING NOTE: [ ] Yes [ ] No ANNEX ATTACHED (and incorporated by
reference herein): [ ] Yes [ ] No
AUTHORIZED DENOMINATION: OTHER/ADDITIONAL PROVISIONS:
[ ] $1,000 and integral multiples thereof
[ ] Other:
The Company, for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum specified above, in such coin or
currency of the ________________ as at the time of payment is legal tender for
payment of public and private debts, on the Maturity Date specified above and
to pay interest thereon, in such coin or currency, from and including the
Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which such Original Issue Date
is applicable) specified above, or from and including the most recent Interest
Payment Date
28
specified above to which interest has been paid or duly provided for, as the
case may be. Interest shall be paid in arrears semiannually on each Interest
Payment Date in each year commencing on (a) the first such Interest Payment
Date next succeeding the earliest Original Issue Date or Dates, or (b) if such
Original Issue Date is after a Record Date and prior to the first Interest
Payment Date, on the second Interest Payment Date, at the per annum Interest
Rate set forth above until Maturity and the principal hereof is paid or made
available for payment. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Note is registered at the close of
business on the Record Date specified above next preceding such Interest
Payment Date; PROVIDED, HOWEVER, that if an Original Issue Date falls between a
Record Date and the next Interest Payment Date, the first payment of interest
with respect to such Original Issue Date will be made on the second Interest
Payment Date subsequent to such Original Issue Date to the Person in whose name
this Note is registered at the close of business on the Record Date for such
second Interest Payment Date; and PROVIDED, FURTHER, that interest payable on
the Maturity Date or, if applicable, upon redemption, shall be payable to the
Person to whom principal shall be payable. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Record Date and shall be
paid to the Person in whose name this Note is registered at the close of
business on a Record Date for the payment of such defaulted interest to be
fixed by the Company, notice whereof shall be given to Noteholders not less
than fifteen calendar days prior to such Record Date. Payment of the principal
of and any premium and interest on this Note shall be made on or before 10:30
A.M., New York City time or such other time as shall be agreed upon between the
Trustee and the Depositary, on the day on which such payment is due, by wire
transfer into the account specified by the Depositary; PROVIDED, HOWEVER, that
as a condition to the payment at the Maturity Date of any part of the principal
and any applicable premium of this Global Note, the Depositary shall surrender,
or cause to be surrendered, this Global Note to the Trustee. The Company will
pay any administrative costs imposed by banks in connection with making
payments by wire transfer, but not any tax, assessment or governmental charge
imposed on the Holder of this Note.
Under certain circumstances, this Global Note is exchangeable in whole
or from time to time in part for a definitive individual Note or Notes, with
the same Original Issue Date or Dates, Maturity Date, Interest Rate and
redemption and other provisions as provided herein or in the Indenture.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Texas.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS GLOBAL NOTE
SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through a duly
appointed and authorized authenticating agent, by manual signature of an
authorized signatory, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
2
29
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: CENTEX CORPORATION
[SEAL] By:
----------------------------
Xxxxx X. Xxxxxxx
Vice President and Treasurer
ATTEST:
-----------------------------
Xxxx X. Xxxxxxxxx
Assistant Secretary
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee
By:
--------------------------
Authorized Signatory
3
30
[REVERSE OF GLOBAL FIXED RATE NOTE]
CENTEX CORPORATION
FIXED RATE MEDIUM-TERM NOTE, SERIES A
This Global Note is one of, and a global security which represents
Notes which are part of, a duly authorized issue of Senior Debt Securities of
the Company (herein called the "Notes"), issued and to be issued in one or more
Series under an Indenture dated as of October 1, 1998 (herein called the
"Senior Indenture") between the Company and Chase Bank of Texas, National
Association, as Trustee (herein called the "Trustee," which term includes any
successor Trustee under the Senior Indenture), to which Senior Indenture and
all indentures supplemental thereto (including the Indenture Supplement dated
as of October 1, 1998 which authorizes the Notes) reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Noteholders, and of
the terms upon which the Notes are, and are to be, authenticated and delivered.
All terms used in this Note which are defined in the Senior Indenture or in any
indenture supplemental thereto but are not defined in this Note shall have the
meanings assigned to them in the Senior Indenture or in any indenture
supplemental thereto.
Each Note shall be dated the date of its authentication by the
Trustee. Each Note shall also bear an Original Issue Date or Dates which with
respect to this Global Note (or any portion thereof) shall mean the date or
dates of the original issue of the Notes represented hereby as specified on the
face hereof, and such Original Issue Date or Dates shall remain the same for
all Notes subsequently issued upon transfer, exchange or substitution of such
original Note (or such subsequently issued Notes) regardless of their dates of
authentication. The Notes may bear different dates, mature at different times,
bear interest at different rates, be subject to different redemption
provisions, if any, and may otherwise vary, all as provided in the Senior
Indenture.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Senior Indenture and the Indenture Supplement, senior in
right of payment to certain indebtedness of the Company.
Interest on this Note will be payable on the Interest Payment Date or
Interest Payment Dates as specified on the face hereof and, in either case, at
Maturity. Unless otherwise specified on the face hereof, payments on this Note
with respect to any particular Interest Payment Date or the Maturity Date will
include interest accrued from and including the applicable Original Issue Date,
or from and including the most recent Interest Payment Date to which interest
has been paid or duly provided for, to but excluding the particular Interest
Payment Date or the Maturity Date. Interest on this Note will be computed and
paid on the basis of a 360-day year of twelve 30-day months.
Unless otherwise specified on the face hereof or the Company Order, if
this Note is an Amortizing Note, payments with respect to this Note will be
applied first to interest due and payable hereon and then to the reduction of
the unpaid principal amount hereof. If this Note is an Amortizing Note, a
table setting forth the schedule of dates and amounts of payments of principal
of and interest on this Note or the formula for the amortization of principal
and/or interest is set forth in an annex attached to this Note.
All percentages resulting from any calculation with respect to this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point rounded
upward) and all dollar or foreign or composite currency amounts used in or
resulting from any such calculation with respect to this Note will be rounded,
in the case of United States dollars, to the nearest cent or, in the case of a
foreign or composite currency, to the nearest unit (with one-half cent or unit
being rounded upward).
If an Interest Payment Date or the Maturity Date for this Note falls
on a day that is not a Business Day, payment of principal, premium, if any, and
interest to be made on such day with respect to this Note will be made on the
next succeeding day that is a Business Day with the same force and effect as if
made on the due date, and no additional interest will be payable on the date of
payment for the period from and after the due date as a result of such delayed
payment.
This Note will be redeemable at the option of the Company prior to its
Stated Maturity Date only if an Initial Redemption Date is specified on the
face hereof. If so specified, this Note will be subject to redemption at the
option of the Company on any date on and after such Initial Redemption Date in
whole or from time to time in part in
4
31
increments of $1,000 or any other integral multiple thereof, at the redemption
prices specified in an annex attached to this Note, plus accrued and unpaid
interest to but excluding the date of redemption, but payments due with respect
to this Note prior to the date of redemption will be payable to the Holder of
this Note of record at the close of business on the relevant Record Date
specified on the face hereof, all as provided in the Senior Indenture. Notice
of such redemption shall be given by mailing by first-class mail a notice of
such redemption not less than 20 nor more than 60 calendar days prior to the
date fixed for redemption to the Holder of this Note, in accordance with the
provisions of the Senior Indenture. In the event of redemption of this Note in
part only, this Note will be canceled and a new Note or Notes representing the
unredeemed portion hereof will be issued in the name of the Holder hereof.
This Note is not subject to a sinking fund unless otherwise specified in an
annex attached hereto.
If so specified on the face of this Note, (i) this Note shall be
subject to repayment, in whole or in part, prior to the Stated Maturity Date at
the option of the Holder on a certain date or dates and at a certain price or
prices, plus accrued and unpaid interest to but excluding the date of payment;
and/or (ii) the Interest Rate specified on the face hereof may be reset by the
Company in accordance with a formula or otherwise on the Optional Interest
Reset Date or Dates specified on the face hereof.
Notwithstanding anything herein to the contrary, if this Note is an
Original Issue Discount Note as specified on the face hereof, the amount
payable in the event the principal amount hereof is declared to be due and
payable immediately by reason of an Event of Default or in the event of
redemption or repayment hereof prior to the Stated Maturity hereof, in lieu of
the principal amount due at the Stated Maturity hereof, shall be the Amortized
Face Amount of this Note as of the date of declaration, redemption or
repayment, as the case may be. The "Amortized Face Amount" of this Note shall
be the amount equal to the principal amount of this Note multiplied by the
Issue Price specified on the face hereof plus (b) the portion of the difference
between the dollar amount thus obtained and the principal amount hereof that
has accreted at the Yield to Maturity specified on the face hereof (computed in
accordance with generally accepted United States bond yield computation
principles) to such date of declaration, redemption or repayment but in no
event shall the Amortized Face Amount of this Note exceed the principal amount
stated on the face hereof.
In case an Event of Default shall have occurred and be continuing with
respect to the Notes, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Senior Indenture. The Senior
Indenture provides that in certain events such declaration and its consequences
may be waived by the Holders of a majority in aggregate principal amount of the
Notes then outstanding. An Event of Default with respect to the Senior Debt
Security of any other Series issued under the Senior Indenture, including the
failure to make any payment of principal or interest with respect thereto when
and as due, will not be an Event of Default with respect to the Notes.
The Senior Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding, evidenced as
in the Senior Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Senior Indenture or of any supplemental indenture or modifying in any
manner the rights of the Holders of the Notes; PROVIDED, HOWEVER, that no such
supplemental indenture shall (i) extend the fixed maturity of any Notes, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable on the redemption
thereof, without the consent of the Holder of each Note so affected, or (ii)
reduce the aforesaid percentage of Notes, the consent of the Holders of which
is required for any such supplemental indenture, without the consent of the
Holders of all Notes then outstanding. It is also provided in the Senior
Indenture that the Holders of a majority in aggregate principal amount of the
Notes at the time outstanding may on behalf of the Holders of all the Notes
waive any past default under the Senior Indenture and its consequences, except
a default in the payment of the principal of or premium, if any, or interest on
any of the Notes. Any such consent or waiver by the Holder of this Global Note
(unless revoked as provided in the Senior Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Global
Note and of any Note issued in exchange or substitution herefor, whether or not
any notation of such consent or waiver is made upon this Global Note.
As set forth in, and subject to, the provisions of the Senior
Indenture, no Holder of any Notes will have any right to institute any
proceeding with respect to the Senior Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written notice of
default in respect of the Notes and the continuance thereof,
5
32
and unless the Holders of not less than 25 percent in aggregate principal
amount of the Notes then outstanding shall have made written request upon the
Trustee to institute such action or proceedings in its own name as Trustee
hereunder and shall have furnished to the Trustee such reasonable indemnity as
it may require, and the Trustee shall have failed to institute such proceeding
within 60 calendar days; PROVIDED, HOWEVER, that such limitations do not apply
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal of and any premium or interest on this Global Note on or after the
respective due dates expressed herein.
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY OR
A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
If at any time the Depositary for this Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for this
Global Note or if at any time the Depositary for this Global Note shall no
longer be registered as a clearing agency under the Securities Exchange Act of
1934, as amended, or any successor statute or regulation, the Company may
appoint a successor Depositary with respect to this Global Note. If (A) a
successor Depositary for this Global Note is not appointed by the Company
within 60 calendar days after the Company receives such notice or becomes aware
of such ineligibility, or (B) any Notes are represented by this Global Note at
a time when an Event of Default with respect to the Notes shall have occurred
and be continuing, then in each case the Company's election to issue this Note
in global form shall no longer be effective with respect to this Global Note
and the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual Notes in exchange for this
Global Note, shall authenticate and make available for delivery, individual
Notes of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of this Global Note in exchange for this
Global Note.
If agreed by the Company and the Depositary with respect to Notes
issued in the form of this Global Note, the Depositary for such Global Note
shall surrender this Global Note in exchange in whole or in part for individual
Notes of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depositary. Thereupon the Company shall
execute, and the Trustee shall authenticate and make available for delivery,
without a service charge, (1) to each Person specified by such Depositary, a
new Note or Notes of like tenor and terms, and of any authorized denominations
as requested by such Person in aggregate principal amount equal to and in
exchange for the beneficial interest of such Person in this Global Note, and
(2) to such Depositary a new Global Note of like tenor and terms and in a
denomination equal to the difference, if any, between the principal amount of
this Global Note and the aggregate principal amount of Notes delivered to
Holders thereof.
Under certain circumstances specified in the Senior Indenture, the
Depositary may be required to surrender any two or more Global Notes which have
identical terms (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered to the Trustee, and such new Global Note shall
indicate each applicable Original Issue Date and the principal amount
applicable to each such Original Issue Date.
No reference herein to the Senior Indenture and no provision of this
Global Note or of the Senior Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Global Note at the times, places and
rates, and in the coin or currency, herein prescribed.
The Senior Indenture contains provisions for the satisfaction and
discharge of the Senior Indenture upon compliance by the Company with certain
conditions specified therein, which provisions apply to this Note.
The Company, the Trustee, any paying agent and any Senior Debt
Security Registrar (as defined in the Senior Indenture) for the Notes may deem
and treat the Holder hereof as the absolute owner of this Global Note (whether
or
6
33
not this Global Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon made by anyone other than the Company or any
such Senior Debt Security Registrar), for the purpose of receiving payment
hereof or on account hereof and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any such Senior Debt Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this Global Note, or for any claim based
hereon or otherwise in respect hereof, or based on or in respect of the Senior
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
7
34
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at _______________________________________.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of _______________) which
the holder elects to have repaid and specify the denomination or denominations
(which shall be an authorized denomination) not less than ___________ of the
Notes to be issued to the Holder for the portion of this Note not being repaid
(in the absence of any such specification, one such Note will be issued for the
portion not to be repaid).
Principal Amount
to be Repaid:
$
---------------------------------- ----------------
CUSIP Number or other identifier:
Date:
----------------------------- ------------------------------------
NOTICE: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
The signature(s) must be guaranteed
by an "eligible guarantor
institution" that is a member or
participant in the Securities
Transfer Agents Medallion Program,
the Stock Exchange Medallion
Program or the New York Stock
Exchange, Inc. Medallion Program.
Notice: The signature(s) on this Option to Elect Repayment must correspond
with the name(s) as written upon the face of this Note in every particular,
without alteration or enlargement or any change whatsoever.
8
35
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT
MIN ACT - ____ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
Under Uniform Gifts
JT TEN - as joint tenants with right of to Minors Act
survivorship and not as tenants in
common ----------------------
State
Additional abbreviations may also be used though not in the above list.
-----------
FOR VALUE RECEIVED the undersigned hereby sell(s) assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
-----------------------
-----------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
--------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________________________________attorney to transfer
said note on the books of the Company, with full power of substitution in the
premises.
Dated:
--------------------------- ------------------------------------
NOTICE: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
The signature(s) must be guaranteed
by an "eligible guarantor
institution" that is a member or
participant in the Securities
Transfer Agents Medallion Program,
the Stock Exchange Medallion
Program or the New York Stock
Exchange, Inc. Medallion Program.
9
36
EXHIBIT B
GLOBAL FLOATING RATE NOTE
REGISTERED PRINCIPAL AMOUNT
NO. $
---------
CENTEX CORPORATION
Medium-Term Note, Series A
Floating Rate
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx ("DTC"), to Centex Corporation, a Nevada corporation (herein called the
"Company," which term includes any successor person under the Indenture referred
to on the reverse hereof) or its agent for registration of transfer, exchange or
payment, and any Note issued is registered in the name of Cede & Co., or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Notes in
certificated form, this Note may not be transferred except as a whole by DTC to
a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by
DTC or any such nominee to a successor of DTC or a nominee of such successor of
DTC.
The following summary of terms is subject to the provisions set forth
below:
CUSIP No.: CURRENCY:
ORIGINAL ISSUE DATE(S): OPTIONAL REDEMPTION: [ ] Yes [ ] No
PRINCIPAL AMOUNT: INITIAL REDEMPTION DATE:
STATED MATURITY DATE: AMORTIZING NOTE: [ ] Yes [ ] No
INITIAL INTEREST RATE: CALCULATION AGENT:
INTEREST RATE BASIS OR BASES OPTION TO ELECT REPAYMENT: [ ] Yes [ ] No
(including any Designated LIBOR Page):
INDEX MATURITY: AUTHORIZED DENOMINATIONS:
[ ] $1,000 and integral multiples thereof
[ ] Other:
INTEREST DETERMINATION DATES:
INTEREST RESET PERIOD: OPTIONAL REPAYMENT DATE:
INTEREST RESET DATES: OPTIONAL INTEREST RESET: [ ] Yes [ ] No
SPREAD: OPTIONAL INTEREST RESET DATES:
SPREAD MULTIPLIER: ORIGINAL ISSUE DISCOUNT NOTE: [ ] Yes [ ] No
MAXIMUM INTEREST RATE: ISSUE PRICE (percentage of principal):
MINIMUM INTEREST RATE: YIELD TO MATURITY:
INTEREST PAYMENT DATES: ANNEX ATTACHED (and incorporated
by reference herein): [ ] Yes [ ] No
RECORD DATES: OTHER/ADDITIONAL PROVISIONS
37
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Page: Designated CMT Telerate Page:
[ ] LIBOR Telerate Page: IF Telerate Page 7052:
DESIGNATED LIBOR CURRENCY: [ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
INTEREST CATEGORY: DAY COUNT CONVENTION
[ ] Regular Floating Rate Note [ ] 30/360 for the period from
[ ] Floating Rate/Fixed Rate Note to
Fixed Rate Commencement [ ] Actual/360 for the period from
Date: to
Fixed Interest Rate: % [ ] Actual/Actual for the period from to.
[ ] Inverse Floating Rate Note Applicable Interest Rate Basis:
Fixed Interest Rate: %
The Company, for value received, hereby promises to pay to Cede & Co.
or registered assigns, the principal sum specified above, in such coin or
currency of the ______________________ as at the time of payment is legal tender
for payment of public and private debts, on the Stated Maturity Date specified
above and to pay interest thereon, in such coin or currency, from and including
the Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which such Original Issue Date
is applicable) specified above, or from and including the most recent Interest
Payment Date specified above to which interest has been paid or duly provided
for, as the case may be. Interest shall be paid in arrears monthly, quarterly,
semiannually or annually as specified above under Interest Payment Dates, on
each Interest Payment Date in each year and at Maturity, commencing on (a) the
first such Interest Payment Date next succeeding the earliest Original Issue
Date or Dates, or (b) if such Original Issue Date is after a Record Date and
prior to the first Interest Payment Date, on the second Interest Payment Date,
at a rate per annum equal to the Initial Interest Rate specified above until the
initial Interest Reset Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions in the Indenture for calculating
the Interest Rate for Notes having the Interest Rate Basis specified above,
until Maturity and the principal hereof is paid or made available for payment.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Note is registered at the close of business on the Record Date
specified above next preceding such Interest Payment Date; PROVIDED, HOWEVER,
that if an Original Issue Date falls between a Record Date and the next Interest
Payment Date, the first payment of interest with respect to such Original Issue
Date will be made on the second Interest Payment Date subsequent to such
Original Issue Date to the Person in whose name this Note is registered at the
close of business on the Record Date for such second Interest Payment Date; and
PROVIDED, FURTHER, that interest payable on the Maturity Date or, if applicable,
upon redemption, shall be payable to the Person to whom principal shall be
payable. Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Record Date and shall be paid to the Person in whose name this
Note is registered at the close of business on a Record Date for the payment of
such defaulted interest to be fixed by the Company, notice whereof shall be
given to Noteholders not less than fifteen calendar days prior to such Record
Date. Payment of the principal of and any premium and interest on this Note
shall be made on or before 10:30 A.M., New York City time or such other time as
shall be agreed upon between the Trustee and the Depositary, on the day on which
such payment is due, by wire transfer into the account specified by the
Depositary; PROVIDED, HOWEVER, that as a condition to the payment at the
Maturity Date of any part of the principal and any applicable premium of this
Global Note, the Depositary shall surrender, or cause to be surrendered, this
Global Note to the Trustee. The Company will pay any administrative costs
imposed by banks in connection with making payments by wire transfer, but not
any tax, assessment or governmental charge imposed on the Holder of this Note.
Under certain circumstances, this Global Note is exchangeable in whole
or from time to time in part for a definitive individual Note or Notes, with the
same Original Issue Date or Dates, Maturity Date, Interest Rate Basis or Bases
and redemption and other provisions as provided herein or in the Indenture.
2
38
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Texas.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS GLOBAL NOTE
SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through a duly
appointed and authorized authenticating agent, by manual signature of an
authorized signatory, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
3
39
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
CENTEX CORPORATION
[SEAL]
By:
------------------------------------
Xxxxx X. Xxxxxxx
Vice President and Treasurer
ATTEST:
-------------------------------
Xxxx X. Xxxxxxxxx
Assistant Secretary
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee
By:
-----------------------------
Authorized Signatory
4
40
[REVERSE OF GLOBAL FLOATING RATE NOTE]
CENTEX CORPORATION
FLOATING RATE MEDIUM-TERM NOTE, SERIES A
This Global Note is one of, and a global security which represents
Notes which are part of, a duly authorized issue of Senior Debt Securities of
the Company (herein called the "Notes"), issued and to be issued in one or more
Series under an Indenture dated as of October 1, 1998 (herein called the "Senior
Indenture") between the Company and Chase Bank of Texas, National Association,
as Trustee (herein called the "Trustee," which term includes any successor
Trustee under the Senior Indenture), to which Senior Indenture and all
indentures supplemental thereto (including the Indenture Supplement dated as of
October 1, 1998 which authorizes the Notes) reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Noteholders, and of the terms
upon which the Notes are, and are to be, authenticated and delivered. All terms
used in this Note which are defined in the Senior Indenture or in any indenture
supplemental thereto but are not defined in this Note shall have the meanings
assigned to them in the Senior Indenture or in any indenture supplemental
thereto.
Each Note shall be dated the date of its authentication by the Trustee.
Each Note shall also bear an Original Issue Date or Dates which with respect to
this Global Note (or any portion thereof) shall mean the date or dates of the
original issue of the Notes represented hereby as specified on the face hereof,
and such Original Issue Date or Dates shall remain the same for all Notes
subsequently issued upon transfer, exchange or substitution of such original
Note (or such subsequently issued Notes) regardless of their dates of
authentication. The Notes may bear different dates, mature at different times,
bear interest at different rates, be subject to different redemption provisions,
if any, and may otherwise vary, all as provided in the Senior Indenture.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Senior Indenture and the Series Supplement, senior in
right of payment to certain indebtedness of the Company.
Interest on this Note will be payable on the Interest Payment Date or
Interest Payment Dates as specified on the face hereof and, in either case, at
Maturity. Unless otherwise specified on the face hereof, payments on this Note
with respect to any particular Interest Payment Date or the Maturity Date will
include interest accrued from and including the applicable Original Issue Date,
or from and including the most recent Interest Payment Date to which interest
has been paid or duly provided for, to but excluding the particular Interest
Payment Date or the Maturity Date. Interest on this Note shall be calculated for
each day during such period by dividing the interest rate applicable to such day
by 360, if the Interest Rate Basis specified on the face hereof is the CD Rate,
the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the Federal
Funds Rate, LIBOR or the Prime Rate, or by the actual number of days in the
year, if the Interest Rate Basis specified on the face hereof is the CMT Rate or
the Treasury Rate. Unless otherwise provided in an annex attached hereto, the
Trustee, acting in the capacity of Calculation Agent, will calculate the
Interest Rate on this Note. Upon the request of any Holder of this Note, the
Trustee shall provide to such Holder the Interest Rate then in effect and, if
then determined, the interest rate that will become effective on the next
Interest Reset Date with respect to this Note. Each such determination of an
Interest Rate will be final and binding in the absence of manifest error.
Unless otherwise specified in an annex attached hereto, if this Note is
an Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth the schedule of dates and amounts of payments of principal of and interest
on this Note or the formula for the amortization of principal and/or interest is
set forth in an annex attached to this Note.
All percentages resulting from any calculation with respect to this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point rounded upward)
and all dollar or foreign or composite currency amounts used in or resulting
from any such calculation with respect to this Note will be rounded, in the case
of United States dollars, to the nearest cent or, in the case of a foreign or
composite currency, to the nearest unit (with one-half cent or unit being
rounded upwards).
5
41
If an Interest Payment Date or Maturity for this Note falls on a day
that is not a Business Day, payment of principal, premium, if any, and interest
to be made on such day with respect to this Note will be made on the next
succeeding day that is a Business Day with the same force and effect as if made
on the due date, and no additional interest will be payable on the date of
payment for the period from and after the due date as a result of such delayed
payment. Notwithstanding the foregoing, in the case LIBOR is the applicable
Interest Rate Basis with respect to this Note and the next succeeding Business
Day falls in the next succeeding calendar month, payment of interest to be made
on such day with respect to this Note will be made on the immediately preceding
Business Day.
This Note will be redeemable at the option of the Company prior to its
Stated Maturity Date only if an Initial Redemption Date is specified on the face
hereof. If so specified, this Note will be subject to redemption at the option
of the Company on any date on and after such Initial Redemption Date in whole or
from time to time in part in increments of $1,000 or any other integral multiple
thereof, at the redemption prices specified in an annex attached to this Note,
plus accrued and unpaid interest to but excluding the date of redemption, but
payments due with respect to this Note prior to the date of redemption will be
payable to the Holder of this Note of record at the close of business on the
relevant Record Date specified on the face hereof, all as provided in the Senior
Indenture. Notice of such redemption shall be given by mailing by first-class
mail a notice of such redemption not less than 20 nor more than 60 calendar days
prior to the date fixed for redemption to the Holder of this Note, in accordance
with the provisions of the Senior Indenture. In the event of redemption of this
Note in part only, this Note will be canceled and a new Note or Notes
representing the unredeemed portion hereof will be issued in the name of the
Holder hereof. This Note is not subject to a sinking fund unless otherwise
specified in an annex attached hereto.
If so specified on the face of this Note, (i) this Note shall be
subject to repayment, in whole or in part, prior to Stated Maturity Date at the
option of the Holder on a certain date or dates and at a certain price or
prices, plus accrued and unpaid interest to but excluding the date of payment;
and/or (ii) the interest rate specified on the face hereof may be reset by the
Company in accordance with a formula or otherwise on the Optional Interest Reset
Date or Dates specified on the face hereof.
In case an Event of Default shall have occurred and be continuing with
respect to the Notes, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Senior Indenture. The Senior Indenture
provides that in certain events such declaration and its consequences may be
waived by the Holders of a majority in aggregate principal amount of the Notes
then outstanding. An Event of Default with respect to the Senior Debt Security
of any other Series issued under the Senior Indenture, including the failure to
make any payment of principal or interest with respect thereto when and as due,
will not be an Event of Default with respect to the Notes.
The Senior Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding, evidenced as in
the Senior Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Senior Indenture or of any supplemental indenture or modifying in any manner
the rights of the Holders of the Notes; PROVIDED, HOWEVER, that no such
supplemental indenture shall (i) extend the fixed maturity of any Notes, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable on the redemption
thereof, without the consent of the Holder of each Note so affected, or (ii)
reduce the aforesaid percentage of Notes, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the Holders
of all Notes then outstanding. It is also provided in the Senior Indenture that
the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may on behalf of the Holders of all the Notes waive any past default
under the Senior Indenture and its consequences, except a default in the payment
of the principal of or premium, if any, or interest on any of the Notes. Any
such consent or waiver by the Holder of this Global Note (unless revoked as
provided in the Senior Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Global Note and of any
Note issued in exchange or substitution herefor, whether or not any notation of
such consent or waiver is made upon this Global Note.
As set forth in, and subject to, the provisions of the Senior
Indenture, no Holder of any Notes will have any right to institute any
proceeding with respect to the Senior Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written notice of
default in respect of the Notes and of the continuance
6
42
thereof, and unless the Holders of not less than 25 percent in aggregate
principal amount of the Notes then outstanding shall have made written request
upon the Trustee, to institute such action or proceedings in its own name as
Trustee hereunder and shall have furnished to the Trustee such reasonable
indemnity as it may require, and the Trustee shall have failed to institute such
proceeding within 60 calendar days; PROVIDED, HOWEVER, that such limitations do
not apply to a suit instituted by the Holder hereof for the enforcement of
payment of the principal of and any premium or interest on this Global Note on
or after the respective due dates expressed herein.
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY OR
A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.
If at any time the Depositary for this Global Note notifies the Company
that it is unwilling or unable to continue as Depositary for this Global Note or
if at any time the Depositary for this Global Note shall no longer be registered
as a clearing agency under the Securities Exchange Act of 1934, as amended, or
any successor statute or regulation, the Company may appoint a successor
Depositary with respect to this Global Note. If (A) a successor Depositary for
this Global Note is not appointed by the Company within 60 calendar days after
the Company receives such notice or becomes aware of such ineligibility, or (B)
any Notes are represented by this Global Note at a time when an Event of Default
with respect to the Notes shall have occurred and be continuing, then in each
case the Company's election to issue this Note in global form shall no longer be
effective with respect to this Global Note and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Notes in exchange for this Global Note, shall authenticate and make
available for delivery, individual Notes of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of this
Global Note in exchange for this Global Note.
If agreed by the Company and the Depositary with respect to Notes
issued in the form of this Global Note, the Depositary for such Global Note
shall surrender this Global Note in exchange in whole or in part for individual
Notes of like tenor and terms in definitive form on such terms as are acceptable
to the Company and such Depositary. Thereupon the Company shall execute, and the
Trustee shall authenticate and make available for delivery, without a service
charge, (1) to each Person specified by such Depositary, a new Note or Notes of
like tenor and terms, and of any authorized denominations as requested by such
Person in aggregate principal amount equal to and in exchange for the beneficial
interest of such Person in this Global Note, and (2) to such Depositary a new
Global Note of like tenor and terms and in a denomination equal to the
difference, if any, between the principal amount of this Global Note and the
aggregate principal amount of Notes delivered to Holders thereof.
Under certain circumstances specified in the Senior Indenture, the
Depositary may be required to surrender any two or more Global Notes which have
identical terms (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered to the Trustee, and such new Global Note shall
indicate each applicable Original Issue Date and the principal amount applicable
to each such Original Issue Date.
No reference herein to the Senior Indenture and no provision of this
Global Note or of the Senior Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Global Note at the times, places and
rates, and in the coin or currency, herein prescribed.
The Senior Indenture contains provisions for the satisfaction and
discharge of the Senior Indenture upon compliance by the Company with certain
conditions specified therein, which provisions apply to this Note.
The Company, the Trustee, any paying agent and any Senior Debt Security
Registrar (as defined in the Senior Indenture) for the Notes may deem and treat
the Holder hereof as the absolute owner of this Global Note (whether or
7
43
not this Global Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon made by anyone other than the Company or any
such Senior Debt Security Registrar), for the purpose of receiving payment
hereof or on account hereof and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any such Senior Debt Security Registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this Global Note, or for any claim based hereon
or otherwise in respect hereof, or based on or in respect of the Senior
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
8
44
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at ______________________________________________.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of ____________) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be an authorized denomination) not less than ________ of the Notes
to be issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not to be repaid).
Principal Amount
to be Repaid:
$
------------------------------------ ------------------
CUSIP Number or other identifier:
Date:
------------------------------- -----------------------------------
NOTICE: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
The signature(s) must be guaranteed
by an "eligible guarantor
institution" that is a member or
participant in the Securities
Transfer Agents Medallion Program,
the Stock Exchange Medallion Program
or the New York Stock Exchange, Inc.
Medallion Program.
Notice: The signature(s) on this Option to Elect Repayment must correspond with
the name(s) as written upon the face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
9
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 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.
