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EXHIBIT 4.2
CENTEX CORPORATION
Issuer
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
Trustee
INDENTURE SUPPLEMENT NO. 2
Dated as of August 1, 1999
to
INDENTURE
Dated as of October 1, 1998
Senior Medium-Term Notes, Series B
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INDENTURE SUPPLEMENT NO. 2 ("Indenture Supplement"), dated as of August
1, 1999, between CENTEX CORPORATION, a Nevada corporation (together with its
successors and assigns as provided in the Indenture referred to below, the
"Company"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking
association (together with its successors in trust thereunder as provided in the
Indenture referred to below, the "Trustee"), as trustee under an Indenture dated
as of October 1, 1998 (the "Indenture").
PRELIMINARY STATEMENT
Section 2.02 of the Indenture provides, among other things, that the
Company may, when authorized by its Board of Directors, and the Trustee may at
any time and from time to time, enter into a series supplement to the Indenture
for the purpose of authorizing one or more Series of Senior Debt Securities and
to specify certain terms of each such Series of Senior Debt Securities. The
Board of Directors of the Company has duly authorized the creation of a Series
of Senior Debt Securities to be known as the Company's Senior Medium-Term Notes,
Series B (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 City time, on the related Calculation Date, then the CMT
Rate for such CMT Rate Interest Determination
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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
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to the Trustee, to authenticate a Note and to make it available for delivery,
and specifying for such Note the following information:
(1) the name of the Person in which a Note to be issued and
authenticated shall be registered;
(2) the address of such Person;
(3) the taxpayer identification number of such Person;
(4) the principal amount of such Note and, if multiple Notes are to
be issued to such Person, the denominations of such Notes;
(5) the Issue Price of such Note;
(6) the Original Issue Date of such Note;
(7) the date upon which such Note is scheduled to mature and the
Final Maturity Date;
(8) if the Note is to be redeemable at the option of the Company,
the Initial Redemption Date and the date or dates on which, and the
price or prices at which, such Note is redeemable at the option of the
Company;
(9) if the Note is to be repayable prior to the Stated Maturity at
the option of the Holder, the date or dates on which, and the price or
prices at which, such Note is repayable at the option of the Holder;
(10) if the Note is a Fixed Rate Note, the rate of interest on such
Note and the Interest Payment Dates, if other than March 1 and
September 1, and the Record Dates, if other than February 15 and August
15;
(11) if the Note is an Original Issue Discount Note, its Yield to
Maturity;
(12) if such Note is an Amortizing Note, a table setting forth the
schedule of dates and amounts of payments of principal of and interest
on such Note or the formula for the amortization of principal and/or
interest;
(13) if the Note is a Reset Note, the Optional Interest Reset Date
and the formula, if any, for resetting the interest rate of a Fixed
Rate Note or the Spread and/or Spread Multiplier of a Floating Rate
Note;
(14) if the Note is a Floating Rate Note, its:
(A) Initial Interest Rate (I) Interest Reset Dates
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(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,
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if such Business Day with respect to such Floating Rate Note is in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding London Business Day.
(b) The term "Interest Payment Date" shall mean with respect to a Fixed
Rate Note, including a Fixed Rate Amortizing Note, each March 1 and September 1,
or such other dates which are specified in the applicable Company Order during
the period such Fixed Rate Note is outstanding, the Maturity Date of such Fixed
Rate Note, and with respect to defaulted interest on such Fixed Rate Note, the
date established by the Company for the payment of such defaulted interest.
(c) Notwithstanding the foregoing, the first Interest Payment Date for
any 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
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Company Order; and (f) annually: the third Wednesday of the month specified in
the applicable Company Order. If any Interest Reset Date for a Floating Rate
Note would otherwise be a day which is not a Business Day, such Interest Reset
Date shall be postponed to the next succeeding day that is a Business Day,
except that in the case of a LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding London Business Day. If, in the case of a Treasury Rate Note, an
Interest Reset Date shall fall on a day on which the Treasury auctions Treasury
Bills, then such Interest Reset Date shall instead be the first Business Day
immediately following such auction.
INTEREST RESET PERIOD:
The term "Interest Reset Period" shall mean for:
(a) each Floating Rate Note on which interest is reset
monthly, quarterly, semiannually or annually, and each Fixed Rate Note,
the period:
(1) beginning on and including the Original Issue
Date of such 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
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supplemental thereto and authenticated by the Trustee (other than in connection
with a transfer, exchange or substitution).
ORIGINAL ISSUE DISCOUNT NOTE:
The term "Original Issue Discount Note" shall mean (i) a Note that has
a "stated redemption price at maturity" that exceeds its "issue price", each as
defined for United States federal income tax purposes, by at least 0.25% of its
stated redemption price at maturity multiplied by the number of complete years
from the Original Issue Date to the Stated Maturity for such Note (or in the
case of a Note that provides for payment of any amount other than the "qualified
stated interest", as defined for United States federal income tax purposes,
prior to maturity, the weighted average maturity of the Note) and (ii) any other
Note designated by the Company in the applicable Company Order as issued with
original issue discount for United States federal income tax purposes.
PERSON:
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
PRIME RATE:
The term "Prime Rate" for a particular Floating Rate Note, unless
otherwise indicated in the applicable Company Order, shall mean, with respect to
any Prime Rate Interest Determination Date, the rate on such date as published
in H.15(519) under the caption "Bank Prime Loan" or, if not published by 3:00
P.M., New York City time, on the related Calculation Date, the rate on such
Prime Rate Interest Determination Date as published in H.15 Daily Update, or
such other recognized electronic source used for the purpose of displaying such
rate, under the caption "Bank Prime Loan." If such rate is not yet published in
H.15(519), H.15 Daily Update or another recognized electronic source by 3:00
P.M., New York City time, on the related Calculation Date, then the Prime Rate
shall be the arithmetic mean of the rates of interest publicly announced by each
bank that appears on the Reuters Screen USPRIME1 Page (as hereinafter defined)
as such bank's prime rate or base lending rate as of 11:00 A.M., New York City
time, on such Prime Rate Interest Determination Date. If fewer than four such
rates appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest
Determination Date, then the Prime Rate shall be the arithmetic mean of the
prime rates or base lending rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of business on such
Prime Rate Interest Determination Date by four major money center banks (which
may include affiliates of the Agents) in The City of New York selected by the
Calculation Agent. If fewer than four such quotations are so provided, then the
Prime Rate shall be the arithmetic mean of four prime rates quoted on the basis
of the actual number of days in the year divided by a 360-day year as of the
close of business on such Prime Rate Interest Determination Date as furnished in
The City of New York by the major money center banks, if any, that have provided
such quotations and by a reasonable number of substitute banks or trust
companies (which may include affiliates of the Agents) to obtain four such prime
rate quotations, provided such substitute banks or trust companies are organized
and doing business under the laws of the United States, or any State thereof,
each having total equity capital of at least $500 million and being subject to
supervision or examination by Federal or State authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if the
banks or trust companies so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Prime Rate determined as of such Prime Rate
Interest Determination Date will be the Prime Rate in effect on such Prime Rate
Interest Determination Date.
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PRIME RATE NOTES:
The term "Prime Rate Notes" shall mean Floating Rate Notes which are
specified in the applicable Company Order as bearing interest at an interest
rate calculated with reference to the Prime Rate.
PRINCIPAL AMOUNT:
The term "principal amount" with respect to any Note shall mean the
principal amount thereof set forth in the applicable Company Order; PROVIDED
that in the case of any Original Issue Discount Note, its principal amount as of
(i) any date that the principal amount of such Note is to be repaid prior to its
Stated Maturity, whether upon declaration of acceleration, call for redemption,
repayment at the option of the Noteholder or otherwise, or (ii) any date that
any consent, notice, request, direction, waiver or suit by the Noteholders shall
be deemed to be given, made or commenced under this Indenture, such term shall
mean the Amortized Face Amount of such Note as of such date.
PRINCIPAL FINANCIAL CENTER:
The term "Principal Financial Center" shall mean the capital city of
the country to which the Designated LIBOR Currency relates (or, in the case of
ECU, Luxembourg), except that with respect to United States dollars, Australian
dollars, Canadian dollars, Deutsche marks, Dutch guilders, Portuguese escudos,
South African rand and Swiss francs, the "Principal Financial Center" shall be
The City of New York, Sydney, Toronto, Frankfurt, Amsterdam, London,
Johannesburg and Zurich, respectively.
RECORD DATE:
The term "Record Date" shall mean for the Interest Payment Date for the
payment of interest for an Interest Reset Period for a particular Note, unless
otherwise specified in the applicable Company Order, (a) the day which is
fifteen calendar days immediately prior to such Interest Payment Date, whether
or not such day is a Business Day, (b) the Maturity Date of such Note, unless
such Maturity Date for a Fixed Rate Note is a January 1 or a July 1, in which
event the Record Date will be as provided in clause (a), and (c) a date which is
not less than five Business Days immediately preceding the Interest Payment Date
of defaulted interest on such Note established by notice given by first-class
mail by or on behalf of the Company to the Holder of such Note not less than
fifteen calendar days prior to such Interest Payment Date.
REDEMPTION DATE:
The term "Redemption Date" for a Note shall mean the date fixed for the
redemption of such Note in accordance with the provisions of this Indenture.
RESET NOTE:
The term "Reset Note" shall mean a Fixed Rate Note, with respect to
which the Company has the option to reset the interest rate, and a Floating Rate
Note, with respect to which the Company has the option to reset the Spread
and/or Spread Multiplier.
REUTERS SCREEN USPRIME1 PAGE:
The term "Reuters Screen USPRIME1" shall mean the display designated as
page "USPRIME1" on the Reuters Monitor Money Rate Service (or such other page
which may replace the USPRIME1 page on such service) for the purpose of
displaying the prime rate or base lending rate of major United States banks.
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SPREAD:
The term "Spread" applicable to a particular Floating Rate Note shall
mean the number of Basis Points to be added to or subtracted from the related
Interest Rate Basis or Bases applicable to such Floating Rate Note as specified
in the applicable Company Order, used in the calculation of the Interest Rate
for such Floating Rate Note.
SPREAD MULTIPLIER:
The term "Spread Multiplier" applicable to a particular Floating Rate
Note shall mean the percentage of the related Interest Rate Basis or Bases
applicable to such Floating Rate Note as specified in the applicable Company
Order, used in the calculation of the Interest Rate for such Floating Rate Note.
STATED MATURITY:
The term "Stated Maturity," when used with respect to any Note, shall
mean the date specified in such Note as the date on which the principal of such
Note is due and payable.
TREASURY:
The term "Treasury" shall mean the United States Department of
Treasury.
TREASURY BILLS:
The term "Treasury Bills" shall mean direct obligations of the United
States.
TREASURY RATE:
The term "Treasury Rate" for a particular Floating Rate Note, unless
otherwise indicated in the applicable Company Order, shall mean, with respect to
any Treasury Rate Interest Determination Date, the rate from the auction held on
such Treasury Rate Interest Determination Date (the "Auction") of Treasury Bills
having the Index Maturity specified in the applicable Company Order under the
caption "AVGE INVEST YIELD" on the display on Bridge Telerate, Inc. (or any
successor service) on page 56 ("Telerate Page 56") or page 57 ("Telerate Page
57") or, if not so published by 3:00 P.M., New York City time, on the related
Calculation Date, the auction average rate of such Treasury Bills (expressed as
a bond equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States Department
of the Treasury. In the event that the results of the Auction of Treasury Bills
having the Index Maturity specified in the applicable Company Order are not so
published by 3:00 P.M., New York City time, on the related Calculation Date, or
if no such Auction is held, then the Treasury Rate shall be the rate (expressed
as a bond equivalent on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) on such Treasury Rate Interest Determination Date
of Treasury Bills having the Index Maturity specified in the applicable Company
Order as published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market" or, if not yet published by 3:00
P.M., New York City time, on the related Calculation Date, the rate on such
Treasury Rate Interest Determination Date of such Treasury Bills as published in
H.15 Daily Update, or such other recognized electronic source used for the
purpose of displaying such rate, under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market." If such rate is not yet published
in H.15(519), H.15 Daily Update or another recognized electronic source, then
the Treasury Rate shall be calculated by the Calculation Agent and shall be a
yield to maturity (expressed as a bond equivalent on the basis of a year of 365
or 366 days, as applicable, and applied on a daily basis) of the arithmetic mean
of the secondary market bid rates, as of approximately 3:30 P.M., New
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York City time, on such Treasury Rate Interest Determination Date, of three
leading primary United States government securities dealers (which may include
the Agents or their affiliates) selected by the Calculation Agent, for the issue
of Treasury Bills with a remaining maturity closest to the Index Maturity
specified in the applicable Company Order; provided, however, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date shall be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
TREASURY RATE NOTES:
The term "Treasury Rate Notes" shall mean Floating Rate Notes which are
specified in the applicable Company Order as bearing interest at an interest
rate calculated with reference to the Treasury Rate.
TRUSTEE:
The term "Trustee" shall mean Chase Bank of Texas, National Association
and shall also include any successor Trustee.
YIELD TO MATURITY:
The term "Yield to Maturity" shall mean for a particular Note the yield
to maturity of such Note, computed in accordance with generally accepted United
States bond yield computation principles and expressed as a percentage,
specified in the applicable Company Order.
ZERO COUPON NOTE:
The term "Zero Coupon Note" means a Note issued at a price representing
a discount from the principal amount payable at maturity and bearing a zero
fixed rate of interest.
ARTICLE TWO
Terms and Issuance of the Notes
Section 2.01. Issuance and Designation. A Series of Senior Debt
Securities which shall be designated as the Company's "Medium-Term Notes, Series
A" shall be executed, authenticated and delivered from time to time in
accordance with the provisions of, and shall in all respects be subject to, the
terms, conditions and covenants of, the Indenture and this Indenture Supplement
(including the form of Notes set forth in Exhibits A and B). The aggregate
principal amount of the Notes which may be authenticated and delivered under the
Indenture Supplement shall not, except as permitted by the provisions of the
Indenture, exceed $250,000,000.
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 August 17, 1999, 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
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interest and said sinking fund with respect to the Notes. The Company
may make an irrevocable deposit pursuant to this Section 4.04 only if
at such time the Company shall have delivered to the Trustee and any
such paying agent an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions herein precedent to the satisfaction
and discharge of this Indenture have been complied with and the Opinion
of Counsel further states that the making of such deposit (i) does not
contravene or violate any provision of any indenture, mortgage, loan
agreement or other similar agreement known to such counsel to which the
Company is a party or by which it or any of its property is bound, (ii)
does not require registration by the deposit referred to above under
the Investment Company Act of 1940, as amended, and (iii) to the effect
that the holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax in the same
amount, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.06, 2.08, 5.01, 5.02, 5.05, 6.01, 8.06, 8.10, 13.04 and 13.05 of the
Indenture shall survive until the Notes are no longer outstanding. Thereafter,
the Company's obligations in Section 8.06, 13.04 and 13.05 of the Indenture
shall survive.
ARTICLE FIVE
Miscellaneous
Section 5.01. Ratification of Indenture. As supplemented by this
Indenture Supplement, the Indenture is in all respects ratified and confirmed
and the Indenture as so supplemented by this Indenture Supplement shall be read,
taken and construed as one and the same instrument.
Section 5.02. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture Supplement by any of the provisions of
the Trust Indenture Act, such required provisions shall control.
Section 5.03. Effect of Headings. The article and section headings
herein are included for convenience only and shall not affect the construction
hereof.
Section 5.04. Counterparts. This Indenture Supplement may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 5.05. Severability. In case any provision of this Indenture
Supplement or in the Senior Notes shall be found invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 5.06. Benefits of Indenture Supplement. Nothing in this
Indenture Supplement or in the Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture Supplement.
Section 5.07. Acceptance of Trusts. Chase Bank of Texas, National
Association hereby accepts the trusts in this Indenture Supplement declared and
provided, upon the terms and conditions herein and in the Indenture set forth.
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Section 5.08. Governing Law. This Indenture Supplement and each Note
issued hereunder shall be deemed to be a contract made under the laws of the
State of Texas, and for all purposes shall be construed in accordance with the
laws of said State.
[Remainder of page intentionally left blank.]
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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 )
)
COUNTY OF DALLAS )
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 17th day of August, 1999.
---------------------------------------------
Notary Public in and for the State of Texas
My commission expires:
---------------------------------------------
Printed Name of Notary Public
--------------------------
STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared ________________ and ________________,
known to me to be the persons and officers whose names are subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association,
and that they executed the same as the act of said national banking association
for the purposes and consideration therein expressed, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 17th day of August, 1999.
---------------------------------------------
Notary Public in and for the State of Texas
My commission expires:
---------------------------------------------
Printed Name of Notary Public
--------------------------
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