-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ck904hxUMYXRw3ESW8inZf9wzd/Gq6M1OtZb5NpDQqQowAorLZJkzG92mVnwKDaz fTP6hGV++W7ZzH1JJJYg2g== 0000950134-98-009541.txt : 19981210 0000950134-98-009541.hdr.sgml : 19981210 ACCESSION NUMBER: 0000950134-98-009541 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19981124 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19981209 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CENTEX CORP CENTRAL INDEX KEY: 0000018532 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 750778259 STATE OF INCORPORATION: NV FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-06776 FILM NUMBER: 98766403 BUSINESS ADDRESS: STREET 1: P O BOX 199000 STREET 2: 2728 N HARWOOD CITY: DALLAS STATE: TX ZIP: 75219 BUSINESS PHONE: 2145596500 MAIL ADDRESS: STREET 1: PO BOX 199000 STREET 2: 2728 N HARWOOD CITY: DALLAS STATE: TX ZIP: 75219 FORMER COMPANY: FORMER CONFORMED NAME: CENTEX CONSTRUCTION CO INC DATE OF NAME CHANGE: 19681211 8-K 1 FORM 8-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report: November 24, 1998 (Date of earliest event reported) CENTEX CORPORATION (Exact name of Registrant as specified in its charter) Nevada 1-6776 75-0778259 (State of Incorporation) (Commission File No.) (I.R.S. Employer Identification No.) 2728 N. Harwood Street Dallas, Texas 75201 (Address of principal executive offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (214) 981-5000 2 Item 5. Other Events. Reference is hereby made to the Registrant's Registration Statements on Form S-3 (File Nos. 33-61223 and 333-65217), filed with the Securities and Exchange Commission (the "Commission") on July 21, 1995 and October 1, 1998, respectively, and declared effective thereby on August 3, 1995 and October 8, 1998, respectively (collectively, the "Registration Statements"), pursuant to which the Registrant registered $200,000,000 aggregate principal amount of its senior and subordinated debt securities, various series, for offer and sale in accordance with applicable provisions of the Securities Act of 1933, as amended. On October 21, 1998, the Registrant entered into a Distribution Agreement (the "Original Distribution Agreement") with First Chicago Capital Markets, Inc. ("First Chicago"), Credit Suisse First Boston Corporation ("CSFB"), Morgan Stanley & Co. Incorporated, NationsBanc Montgomery Securities LLC and Warburg Dillon Read LLC (collectively, the "Agents"), in connection with the proposed public offering by the Agents of $200,000,000 aggregate principal amount of senior fixed and floating rate Medium-Term Notes, Series A (the "Senior Debt Securities"), covered by the Registration Statements. The Original Distribution Agreement in the form in which it was executed was filed as Exhibit 1.1 to the Registrant's Form 8-K (Date of Report: October 21, 1998), and is incorporated herein by reference. In connection with the execution of the Original Distribution Agreement, the Registrant entered into an Indenture dated as of October 1, 1998 (the "Senior Indenture"), with Chase Bank of Texas, National Association, as trustee (the "Trustee"), with respect to the Senior Debt Securities. A copy of the Senior Indenture in the form in which it was executed was filed as Exhibit 4.1 to the Registrant's Form 8-K (Date of Report: October 21, 1998), and is incorporated herein by reference. Pursuant to the Senior Indenture, the Registrant and the Trustee entered into an Indenture Supplement No. 1 dated as of October 1, 1998 (the "Senior Indenture Supplement"), providing for the issuance of the Senior Debt Securities. A copy of the Senior Indenture Supplement in the form in which it was executed was filed as Exhibit 4.2 to the Registrant's Form 8-K (Date of Report: October 21, 1998), and is incorporated herein by reference. Pursuant to the Original Distribution Agreement, on October 21, 1998, the Registrant agreed to sell $15,000,000 aggregate principal amount of the Registrant's 6.40% Medium-Term Notes, Series A, due October 25, 2002, which bear interest at a fixed rate (the "Fixed Rate Notes"). The Fixed Rate Notes, which were placed by First Chicago as Agent, were issued on October 26, 1998. The net proceeds to the Registrant from the sale of the Fixed Rate Notes were $14,932,500. Pursuant to the Original Distribution Agreement, on October 23, 1998, the Registrant agreed to sell $50,000,000 aggregate principal amount of the Registrant's Medium-Term Notes, Series A, due April 28, 2000, which bear interest at a floating rate based on the London Interbank Offered Rate (the "CSFB Floating Rate Notes"). The CSFB Floating Rate Notes, which were placed by CSFB as Agent, were issued on October 28, 1998. The net proceeds to the Registrant from the sale of the CSFB Floating Rate Notes were $49,825,000. -2- 3 Pursuant to the Original Distribution Agreement, on November 17, 1998, the Registrant agreed to sell $10,000,000 aggregate principal amount of the Registrant's Medium-Term Notes, Series A, due May 19, 2000, which bear interest at a floating rate based on the London Interbank Offered Rate (the "First Chicago Floating Rate Notes"). The First Chicago Floating Rate Notes, which were placed by First Chicago as Agent, were issued on November 20, 1998. The net proceeds to the Registrant from the sale of the First Chicago Floating Rate Notes were $9,985,000. On November 24, 1998, the Registrant entered into a new Distribution Agreement (the "Distribution Agreement") with the Agents, in connection with the proposed public offering by the Agents of $125,000,000 aggregate principal amount of senior and/or subordinated fixed and floating rate Medium-Term Notes, Series A (the "Debt Securities"), covered by the Registration Statements. The Distribution Agreement in the form in which it was executed is filed herewith as Exhibit 1.2. The Registrant has previously entered into an Indenture dated March 12, 1987 (the "Subordinated Indenture"), with the Trustee, formerly Texas Commerce Bank National Association, with respect to the subordinated debt securities of the Registrant (the "Subordinated Debt Securities"). A copy of the Subordinated Indenture in the form in which it was executed was filed as Exhibit 4.7 to the Registrant's Form 10-K for the year ended March 31, 1993, and is incorporated herein by reference. Pursuant to the Subordinated Indenture, the Registrant and the Trustee entered into an Indenture Supplement No. 4 dated as of November 1, 1998 (the "Subordinated Indenture Supplement"), providing for the issuance of the Subordinated Debt Securities. A copy of the Subordinated Indenture Supplement in the form in which it was executed is filed herewith as Exhibit 4.4. -3- 4 Item 7. Financial Statements and Exhibits. (c) Exhibits Exhibit No. Description 1.1 Distribution Agreement dated October 21, 1998 between Centex Corporation and First Chicago Capital Markets, Inc., Credit Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated, NationsBanc Montgomery Securities LLC and Warburg Dillon Read LLC (filed as Exhibit 1.1 to the Registrant's Form 8-K dated October 21, 1998 and incorporated herein by reference) 1.2 Distribution Agreement dated November 24, 1998 between Centex Corporation and First Chicago Capital Markets, Inc., Credit Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated, NationsBanc Montgomery Securities LLC and Warburg Dillon Read LLC 4.1 Indenture dated October 1, 1998 between Centex Corporation and Chase Bank of Texas, National Association (filed as Exhibit 4.1 to the Registrant's Form 8-K dated October 21, 1998 and incorporated herein by reference) 4.2 Indenture Supplement No. 1 dated as of October 1, 1998 with respect to the Senior Debt Securities, between Centex Corporation and Chase Bank of Texas, National Association (filed as Exhibit 4.2 to the Registrant's Form 8-K dated October 21, 1998 and incorporated herein by reference) 4.3 Indenture dated March 12, 1987 between Centex Corporation and Chase Bank of Texas, National Association (formerly, Texas Commerce Bank National Association) (filed as Exhibit 4.7 to the Joint Annual Report of the Registrant, 333 Holding Corporation and Centex Development Company, L.P. on Form 10-K for the fiscal year ended March 31, 1993 and incorporated herein by reference) 4.4 Indenture Supplement No. 4 dated as of November 1, 1998 with respect to the Subordinated Debt Securities, between Centex Corporation and Chase Bank of Texas, National Association (formerly, Texas Commerce Bank National Association) -4- 5 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunto duly authorized. CENTEX CORPORATION November 9, 1998 By: /s/ Raymond G. Smerge --------------------- Raymond G. Smerge Executive Vice President, Chief Legal Officer and Secretary -5- 6 INDEX TO EXHIBITS
Exhibit No. Description - ----------- ----------- 1.1 Distribution Agreement dated October 21, 1998 between Centex Corporation and First Chicago Capital Markets, Inc., Credit Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated, NationsBanc Montgomery Securities LLC and Warburg Dillon Read LLC (filed as Exhibit 1.1 to the Registrant's Form 8-K dated October 21, 1998 and incorporated herein by reference) 1.2 Distribution Agreement dated November 24, 1998 between Centex Corporation and First Chicago Capital Markets, Inc., Credit Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated, NationsBanc Montgomery Securities LLC and Warburg Dillon Read LLC 4.1 Indenture dated October 1, 1998 between Centex Corporation and Chase Bank of Texas, National Association (filed as Exhibit 4.1 to the Registrant's Form 8-K dated October 21, 1998 and incorporated herein by reference) 4.2 Indenture Supplement No. 1 dated as of October 1, 1998 with respect to the Senior Debt Securities, between Centex Corporation and Chase Bank of Texas, National Association (filed as Exhibit 4.2 to the Registrant's Form 8-K dated October 21, 1998 and incorporated herein by reference) 4.3 Indenture dated March 12, 1987 between Centex Corporation and Chase Bank of Texas, National Association (formerly, Texas Commerce Bank National Association) (filed as Exhibit 4.7 to the Joint Annual Report of the Registrant, 333 Holding Corporation and Centex Development Company, L.P. on Form 10-K for the fiscal year ended March 31, 1993 and incorporated herein by reference) 4.4 Indenture Supplement No. 4 dated as of November 1, 1998 with respect to the Subordinated Debt Securities, between Centex Corporation and Chase Bank of Texas, National Association (formerly, Texas Commerce Bank National Association)
EX-1.2 2 DISTRUBITION AGREEMENT DATED NOVEMBER 24, 1998 1 EXHIBIT 1.2 FINAL CENTEX CORPORATION $125,000,000 Senior Medium-Term Notes, Series A Subordinated Medium-Term Notes, Series A Due 9 Months or More from Date of Issue DISTRIBUTION AGREEMENT November 24, 1998 First Chicago Capital Markets, Inc. 1 First National Plaza Chicago, Illinois 60670 Credit Suisse First Boston Corporation 11 Madison Avenue New York, N.Y. 10010 Morgan Stanley & Co. Incorporated 1585 Broadway 2nd Floor New York, N.Y. 10036 NationsBanc Montgomery Securities LLC 100 North Tryon Street Mail Code NC1-007-07-01 Charlotte, North Carolina 28255 Warburg Dillon Read LLC 677 Washington Blvd. Stamford, CT 06901 Dear Sirs: Centex Corporation, a Nevada corporation (the "Company"), confirms its agreement with each of you (individually, an "Agent" and collectively, the "Agents") with respect to the issue and sale from time to time by the Company of its Senior Medium-Term Notes, Series A (the "Senior Notes") and its Subordinated Medium-Term Notes, Series A (the "Subordinated Notes"), each due 9 months or more from date of issue (the Senior Notes and the Subordinated Notes are herein collectively referred to as the "Notes"). The Senior Notes will be issued under a Senior Indenture (the "Senior Indenture") dated as of October 1, 1998, as supplemented by a first 1 2 Supplemental Indenture thereto dated as of October 1, 1998. The Subordinated Notes will be issued under a Subordinated Indenture (the "Subordinated Indenture") dated as of March 12, 1987, as supplemented by a fourth Supplemental Indenture thereto dated as of November 1, 1998, as each may be amended, supplemented or modified from time to time. The Senior Indenture and the Subordinated Indenture are individually referred to herein as an "Indenture" and collectively referred to herein as the "Indentures". The Indentures are each between the Company and Chase Bank of Texas, National Association (formerly Texas Commerce Bank National Association), as Trustee (the "Trustee"). This Agreement shall replace for purposes of any Notes issued after the date hereof that certain Distribution Agreement among the parties hereto dated as of October 21, 1998. As of the date hereof, the Company has authorized the issuance and sale of up to $125,000,000 aggregate initial offering price of Notes to the Agents as principal or through the Agents as agent pursuant to the terms of this Agreement. It is understood, however, that the Company may from time to time authorize the issuance and sale of additional Notes and that such additional Notes may be sold to or through the Agents pursuant to the terms of this Agreement, all as though the issuance and sale of such Notes were authorized as of the date hereof. If Notes are sold by the Company to an Agent as principal, such Agent may purchase as principal for resale to investors and other purchasers in accordance with the provisions of Section 2(a) hereof, and, if requested by such Agent, the Company will enter into a Terms Agreement relating to such sale (each, a "Terms Agreement"). If Notes are sold by the Company directly to investors (as may from time to time be agreed to by the Company and an Agent), such Agent will act as agent of the Company in soliciting purchases of the Notes in accordance with the provisions of Section 2(b) hereof. Subject to the terms and conditions stated herein and subject to the reservation by the Company of the right to sell Notes directly on its own behalf, the Company hereby agrees that the Notes will be sold to or through the Agents. The Company hereby appoints each Agent as its agent for the purpose of soliciting and receiving offers to purchase Notes from the Company by others and, on the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, each Agent severally and not jointly agrees to use reasonable best efforts to solicit and receive offers to purchase Notes upon terms acceptable to the Company at such times and in such amounts as the Company shall from time to time specify. For purposes of this Agreement, all references to the Registration Statement (as hereinafter defined), any preliminary prospectus, the Prospectus (as hereinafter defined) or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Securities and Exchange Commission (the "SEC") pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). 1. Representations and Warranties. The Company represents and warrants to and agrees with each Agent as of the date hereof, as of the date of each acceptance by the Company of an offer to purchase Notes (whether to an Agent as principal or through an Agent as agent), as of the date of each delivery of Notes (whether to an Agent as principal or through an Agent as agent) (the date of each such delivery being hereinafter referred to as a "Settlement Date") and as of each date the Registration Statement (as hereinafter defined) or the Prospectus (as hereinafter defined) is amended or supplemented (other than by an amendment or supplement providing solely for a change in the interest rates of Notes or similar changes, and, unless an Agent shall 2 3 otherwise specify, other than by an amendment or supplement which relates exclusively to an offering of debt securities other than Notes) or there is filed with the SEC any document that is incorporated by reference into the Prospectus (each of the times referenced above being referred to as a "Representation Date"), as follows (it being understood that such representations, warranties and agreements shall be deemed to relate to the Registration Statement and the Prospectus, each as amended or supplemented to each such date): (a) The Company has filed with the SEC two registration statements (File Nos. 33-61223 and 333-65217) in respect of the Notes in the forms heretofore delivered or to be delivered to each Agent and such registration statements (and any further registration statements which may be filed by the Company for the purpose of registering additional Notes, including any registration statement filed pursuant to Rule 462(b) of the regulations to the Securities Act) in such forms have been declared effective by the SEC and no stop order suspending the effectiveness of such registration statements has been issued and no proceeding for that purpose has been initiated or threatened by the SEC, and any requests on the part of the SEC for additional information have been complied with (any preliminary prospectus included in such registration statements being hereinafter called a "Preliminary Prospectus;" the various parts of such registration statements, including the Prospectus, all exhibits thereto (other than the Statements of Eligibility under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee, on Form T-1), each as amended, at the time such part became effective, being hereinafter collectively called the "Registration Statement;" the prospectus relating to the Notes and the prospectus supplement relating to any particular issuance of Notes, in the form in which it has most recently been filed, or transmitted for filing, with the SEC on or prior to the date of this Agreement, being hereinafter collectively called the "Prospectus", except that if any revised Prospectus shall be provided to each Agent by the Company for use in connection with the offering of the Notes which is not required to be filed by the Company pursuant to Rule 424(b) under the Securities Act, the term "Prospectus" shall refer to such revised prospectus from and after the time it is first provided to each Agent for such use; any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"), as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in such amendment or supplement; and any reference to the Prospectus, as amended or supplemented, shall be deemed to refer to the Prospectus as amended or supplemented in relation to the applicable Notes in the form in which it is first filed, or transmitted for filing, with the SEC pursuant to Rule 424 under the Securities Act, including any documents incorporated by reference therein as of the date of such filing or transmission); (b) The documents incorporated by reference in the Prospectus, when they were filed or hereafter are filed with the SEC, conformed or when so filed will conform, in all material respects to the requirements of the Exchange Act and the rules and regulations of the SEC thereunder; and any further documents so filed and incorporated by reference in the Prospectus, when such documents are filed with the SEC, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the SEC thereunder; (c) Each part of the Registration Statement and the Prospectus conformed, and as of the applicable Representation Date will conform, and any amendments or supplements to the Registration Statement or the Prospectus will conform, on the date of filing thereof with the 3 4 SEC, in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), as applicable, and the rules and regulations of the SEC thereunder; the Registration Statement and any amendment thereto, as of the applicable effective date, did not and at each time thereafter at which any amendment to the Registration Statement becomes effective and any Annual Report on Form 10-K is filed by the Company with the SEC as of each Representation Date, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus and any supplement thereto, as of the applicable filing date, did not and as of each Representation Date will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this section shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Agent expressly for use in the Registration Statement or Prospectus. Each Preliminary Prospectus and the Prospectus delivered to the Agents for use in connection with the offering of the Notes was identical to the electronically transmitted versions thereof filed with the SEC pursuant to EDGAR, except to the extent permitted by Regulation S-T; (d) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, resulting in an adverse effect on the business, assets, financial position or prospects of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise set forth or contemplated in the Prospectus: (i) there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries; (ii) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; (iii) no event has occurred that would result in a material write-down in assets; (iv) there have been no material transactions entered into by the Company, other than those publicly disclosed or in the ordinary course of business; (v) the Company has not repurchased any of its outstanding capital stock except as set forth in or contemplated by the Prospectus; and (vi) there have been no dividends or distributions of any kind declared, paid or made by the Company in respect of its capital stock except for regular cash dividends paid in the ordinary course of business; (e) The Company and its subsidiaries have indefeasible title in fee simple to all real property and indefeasible title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as are not material to the business of the Company and its subsidiaries, taken as a whole; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under leases that are valid, subsisting and in full force and effect, with such exceptions as are not material to the business of the Company and its subsidiaries, taken as a whole; (f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Nevada, and each subsidiary of the Company has been duly incorporated or organized as a limited liability company, as the case may be, and is 4 5 validly existing as a corporation or limited liability company, as the case may be, in good standing under the laws of its jurisdiction of incorporation or organization, as the case may be; each of the Company and its subsidiaries has full power and authority (corporate and other) to own its properties and conduct its business as described, or incorporated by reference, in the Prospectus, and has been duly qualified as a foreign corporation, or limited liability company, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; (g) The Company has an authorized capitalization as set forth, or as incorporated by reference, in the Prospectus, and all of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable; and all of the outstanding shares of capital stock or outstanding interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and nonassessable and (except (i) for directors' qualifying shares, (ii) as set forth on Schedule I hereto and (iii) as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims affecting transferability or voting except as set forth in the Prospectus; (h) The Notes have been duly authorized, and, when executed, authenticated, issued and delivered against payment therefor pursuant to this Agreement, the Indentures and any applicable Terms Agreement with respect to such Notes, such Notes will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and entitled to the benefits provided by each Indenture, which has been or will be incorporated by reference as an exhibit to the Registration Statement; each Indenture has been duly authorized, and when executed and delivered by the Company will constitute a valid and legally binding instrument, enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Notes and the Indentures are substantially in the form heretofore delivered to each Agent and will conform in all material respects to the descriptions thereof in the Prospectus; and each holder of Notes will be entitled to the benefits of the applicable Indenture; (i) The issue and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, the Remarketing Agreement between the Company and any remarketing agent (the "Remarketing Agreement"), the Indentures, this Agreement and any Terms Agreement, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Articles of Incorporation, as amended or restated, or the Bylaws of the Company or any statute or order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or 5 6 governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the other transactions contemplated by this Agreement or the Remarketing Agreement or any Terms Agreement or the Indentures, except such as have been, or will have been prior to any delivery of the Notes, obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Agents; (j) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (k) Arthur Andersen LLP, who have certified certain financial statements of the Company and its subsidiaries, are independent public accountants as required by the Securities Act and the rules and regulations of the SEC thereunder; (l) The Company has no knowledge of any default in any material obligation to be performed by any party to any agreement to which it or any of its subsidiaries is a party, which default or defaults in the aggregate would have a material adverse effect upon the business, assets, financial position, or prospects of the Company and its subsidiaries, considered as a whole; (m) The consolidated financial statements of the Company and its subsidiaries, including accompanying notes, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Securities Act and fairly present the consolidated financial position and the consolidated results of the operations of the Company and its subsidiaries at the respective dates and for the respective periods to which they apply, and such financial statements have been prepared in conformity with generally accepted accounting principles, consistently applied throughout the periods involved except as may be expressly stated in the notes thereto. The financial information and statistical data set forth in the Prospectus under the caption "Summary of Selected Financial Data" are fairly presented and prepared on a basis consistent with such consolidated financial statements or the books and records of the Company, as the case may be, unless otherwise stated in the Prospectus; (n) Except as described in the Prospectus, the Company and each of its subsidiaries have all necessary licenses, certificates, consents, permits, authorizations, approvals, rights and orders of and from all governmental agencies or bodies having jurisdiction over the Company or any of its subsidiaries to own their respective properties and conduct their respective businesses as described in the Prospectus, the failure to possess or the failure to operate in compliance with which would have a material adverse effect on the business of the Company and its subsidiaries, taken as a whole, and the Company has received no notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely 6 7 affect the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole; (o) This Agreement has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, and any Terms Agreement with respect to the Notes, when executed and delivered by the Company, will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject, in each case, as to enforcement, to bankruptcy, insolvency, reorganization, and other laws of general applicability relating to or affecting creditors' rights, and to general equity principles, and except to the extent that rights of indemnification hereunder may be limited by applicable laws or equity principles; (p) Except as described in the Prospectus, each of the Company and its subsidiaries owns or possesses all of the patents, trademarks, service marks, trade names, copyrights and licenses and rights with respect to the foregoing, necessary for the present conduct of its business, without any known conflict with the rights of others, the result of which conflict would materially and adversely affect the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole; (q) There are no contracts, indentures, mortgages, loan agreements, notes, bonds, debentures, other evidences of indebtedness, leases or other agreements or instruments of the Company of a character required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or referred to or filed as required; (r) No labor disturbance exists with the employees of the Company or any of its subsidiaries, or, to the best of the Company's knowledge, is imminent, that would result in a material adverse effect upon the Company and its subsidiaries, taken as a whole, and the Company has not received notice of any existing or imminent labor disturbance by the employees of any of its principal suppliers, that might reasonably be expected to materially adversely affect the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole; and (s) The conditions to the use of a registration statement on Form S-3 under the Securities Act, as set forth in the General Instructions to Form S-3, have been satisfied with respect to the Company and the Registration Statement and Prospectus; (t) The Remarketing Agreement, if applicable, has been duly and validly authorized, executed and delivered by the Company and, assuming the Remarketing Agreement has been duly authorized, executed and delivered by the Remarketing Agent (as defined in the Prospectus), will be a valid and legally binding agreement of the Company; and (u) Neither the Company nor any of its subsidiaries is required to be registered under the Investment Company Act of 1940, as amended. Any certificate signed by any director or officer of the Company and delivered to the Agents or their counsel in connection with an offering of Notes to an Agent as principal or through an Agent as agent shall be deemed a representation and warranty by the Company to such Agent as to the matters covered thereby on the date of such certificate and at each Representation Date subsequent thereto. 7 8 2. Purchases as Principal; Solicitations as Agent. (a) No Agent shall have any obligation to purchase Notes from the Company as principal, but an Agent may agree from time to time to purchase Notes as principal. Each sale of Notes to an Agent as principal shall be made in accordance with the terms of this Agreement, except as otherwise agreed by such Agent and the Company, and, if requested by such Agent, the Company will enter into a Terms Agreement that will provide for the sale of such Notes to and the purchase thereof by such Agent. Each Terms Agreement will be either (i) substantially in the form of Exhibit A (in the case of Senior Notes) or Exhibit B (in the case of Subordinated Notes) hereto, (ii) in the form of an exchange of any form of written telecommunication between an Agent and the Company or (iii) an oral agreement between an Agent and the Company confirmed in writing by such Agent to the Company. Each agreement by an Agent to purchase Notes as principal (whether or not set forth in a Terms Agreement) shall specify the principal amount of Notes to be purchased by such Agent pursuant thereto, the maturity date of such Notes, the price to be paid to the Company for such Notes, the interest rate and interest rate formula, if any, applicable to such Notes and any other terms of such Notes. Each such agreement shall also specify any requirement for officers' certificates, opinions of counsel and letters from the independent public accountants to the Company pursuant to Section 5 hereto. Each Terms Agreement shall specify the time and place of delivery of and payment for such Notes. With respect to each sale of Notes to an Agent as principal that is not made pursuant to a Terms Agreement, the procedural details relating to the issue and delivery of such Notes and the payment therefor shall be as set forth in the Administrative Procedures (as hereinafter defined). Each purchase of Notes by an Agent as principal, unless otherwise agreed, shall be at a discount from the principal amount of each such Note equivalent to the applicable commission set forth in Subsection (b) hereof. Each Agent may engage the services of any other broker or dealer in connection with the resale of any Notes purchased by such Agent as principal and may allow all or any portion of the discount received in connection with such purchases from the Company to such brokers and dealers. (b) If agreed upon by an Agent and the Company, such Agent, acting solely as agent for the Company and not as principal, will solicit purchasers of the Notes. In connection with the Agents' actions as agents hereunder, each Agent agrees to use reasonable best efforts to solicit offers to purchase Notes from the Company upon the terms and conditions set forth in the Prospectus (and any supplement thereto) and in the Administrative Procedures. In soliciting offers to purchase the Notes as agents, each Agent is acting solely as an agent for the Company, and not as a principal, and does not assume any obligation toward or relationship of agency or trust with any purchaser of Notes. Each Agent shall make reasonable efforts to assist the Company in obtaining performance by each purchaser whose offer to purchase Notes has been solicited by such Agent and accepted by the Company, but no Agent shall have any liability to the Company in the event any such purchase is not consummated for any reason. If the Company shall default in its obligations to deliver Notes to a purchaser whose offer it has accepted, the Company shall hold each Agent harmless against any loss, claim, damage or liability arising from or as a result of such default and shall, in particular, pay to each Agent the commission each Agent would have received had such sale been consummated. 8 9 The Company may appoint additional agents in connection with the offering of the Notes; provided that (i) the Company promptly notifies each Agent of such appointment and (ii) the commission paid to any such additional agent with respect to the sale of Notes by the Company as a result of a solicitation made by such additional agent is the same as that percentage specified below of the aggregate principal amount of such Notes sold by the Company; and provided further that, unless the appointment of such additional agent is expressly limited to the solicitation of offers to purchase a specified principal amount of Notes on specified terms, such additional agent enters into an agreement with the Company making such agent an Agent under this Agreement or enters into an agreement with the Company on terms which are substantially similar to those contained in this Agreement, which agreement shall include appropriate changes to reflect the arrangements between the Company and such additional agent. The Company may from time to time offer Notes for sale otherwise than through an Agent. No Agent is authorized to appoint sub-agents with respect to Notes sold through an Agent as agent. The Company reserves the right, in its sole discretion, to instruct the Agents to suspend at any time, for any period of time or permanently, the solicitation of offers to purchase Notes (other than Notes held by the Agents that were purchased from the Company as principal). As soon as practicable after receipt of instructions from the Company, each Agent will forthwith suspend solicitations of offers to purchase Notes from the Company until such time as the Company has advised the Agents that such solicitation may be resumed. While such solicitation is suspended, the Company shall not be required to deliver any certificates, opinion or letter in accordance with Sections 6(a), (b) and (c); provided, however, that if the Registration Statement or the Prospectus is amended or supplemented during the period of suspension (other than by an amendment or supplement providing solely for a change in the interest rates of the Notes or for a change the Agents deem to be immaterial), no Agent shall be required to resume soliciting offers to purchase Notes until the Company has delivered such certificates, opinions and letters an Agent may request. The Company also reserves the right to sell Notes directly to purchasers in those jurisdictions in which it is authorized to do so. Except as otherwise agreed, the Company agrees to pay to each Agent, as consideration for the sale of each Note resulting from a solicitation made or an offer to purchase received by such Agent, a commission in the form of a discount from the purchase price of such Note equal to the following percentage of the principal amount of such Note:
Term* Commission Rate ----- --------------- From 9 months to less than 1 year .125% From 1 year to less than 18 months .150% From 18 months to less than 2 years .200% From 2 years to less than 3 years .250% From 3 years to less than 4 years .350% From 4 years to less than 5 years .450% From 5 years to less than 6 years .500% From 6 years to less than 7 years .550% From 7 years to less than 10 years .600% From 10 years to less than 15 years .625% From 15 years to less than 20 years .700% From 20 years to 30 years .750% Greater than 30 years To be agreed to by the Company and each Agent at time of sale.
- --------------- * Or Initial Rate Period, in the case of Remarketed Notes. 9 10 Each Agent shall communicate to the Company, orally or in writing, each offer to purchase Notes received by an Agent as agent that in such Agent's judgment should be considered by the Company. The Company shall have the sole right to accept offers to purchase Notes and may reject any offer in whole or in part. Each Agent shall have the right to reject any offer to purchase Notes that such Agent considers to be unacceptable, and any such rejection shall not be deemed a breach of such Agent's agreements contained herein. Delivery of Notes sold through an Agent as agent shall be made by the Company to such Agent for the account of any purchaser against payment therefor in immediately available funds. In the event that a purchaser shall fail either to accept delivery of or to make payment for a Note on the date fixed for settlement, an Agent shall promptly notify the Company and deliver such Note to the Company and if such Agent has theretofore paid the Company for such Note, the Company will promptly return such funds to such Agent. If such failure occurred for any reason other than default by an Agent in the performance of its obligations hereunder, the Company will reimburse such Agent on an equitable basis for its loss of the use of the funds for the period such funds were credited to the Company's account. (c) The Company and each Agent agree that any Notes purchased an Agent shall be purchased, and any Notes the placement of which an Agent arranges as agent shall be placed by such Agent, in reliance on the representations, warranties, agreements and covenants of the Company contained herein and on the terms and conditions and in the manner provided herein. (d) The purchase price, interest rate or formula, maturity date and other terms of the Notes (as applicable) shall be agreed upon by the Company and each Agent and specified in a pricing supplement to the Prospectus (each, a "Pricing Supplement") to be prepared in connection with each sale of Notes. Except as otherwise specified in the applicable Pricing Supplement, the Notes will be issued in denominations of U.S. $1,000, except for Remarketed Notes which will be issued in minimum denominations of $100,000, or any larger amount that is an integral multiple thereof. Each Agent and the Company agree to perform the respective duties and obligations specifically provided to be performed in the Medium-Term Notes Administrative Procedures (attached hereto as Exhibit C) (the "Administrative Procedures"), as amended from time to time. The Administrative Procedures may be amended only by written agreement of the Company, each Agent and the Trustee. The Company will furnish to the Trustee a copy of the Administrative Procedures as from time to time in effect. The Company agrees to cause the Trustee to agree to perform the duties and obligations specifically provided to be performed by the Trustee in such Administrative Procedures. 3. Agreements. The Company agrees with each Agent that: (a) The Company will notify each Agent immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the SEC for filing of any amendment or supplement to the Prospectus or any document to be filed pursuant to the Exchange Act which will be incorporated by reference in the Prospectus (other than any amendment, supplement or document relating solely to securities 10 11 other than the Notes), (iii) the receipt of any comments from the SEC with respect to the Registration Statement or the Prospectus, (iv) any request by the SEC for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. (b) The Company will give each Agent notice of its intention to file or prepare any additional registration statement with respect to the registration of additional Notes, any amendment to the Registration Statement or any amendment or supplement to the Prospectus (other than an amendment or supplement providing solely for a change in the interest rates or formula applicable to the Notes or relating solely to the issuance and/or offering of securities other than the Notes), whether by the filing of documents pursuant to the Exchange Act, the Securities Act or otherwise, and will furnish each Agent with copies of any such amendment or supplement or other documents proposed to be filed or prepared a reasonable time in advance of such proposed filing or preparation, as the case may be, and will not file any such amendment or supplement or other documents in a form to which an Agent or its counsel shall reasonably object. (c) The Company will deliver to the Agents as many signed and conformed copies of the Registration Statement (as originally filed) and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as the Agents may reasonably request. The Company will furnish to the Agents as many copies of the Prospectus as the Agents shall reasonably request so long as the Agents are required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Notes. (d) The Company will prepare, with respect to any Notes to be sold to or through an Agent pursuant to this Agreement, a Pricing Supplement with respect to such Notes in a form previously approved by such Agent and will file such Pricing Supplement pursuant to Rule 424(b)(3) under the Securities Act not later than the close of business of the SEC on the second business day after the date on which such Pricing Supplement is first used. (e) Except as otherwise provided in subsection (m) of this Section, if at any time during the term of this Agreement any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of your counsel or counsel for the Company, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the Securities Act or the regulations to the Securities Act, immediate notice shall be given, and confirmed in writing, to each Agent to cease the solicitation of offers to purchase the Notes in such Agent's capacity as agent and to cease sales of any Notes an Agent may then own as principal pursuant to an agreement by such Agent to purchase Notes as principal, and the Company will promptly prepare and file with the SEC such amendment or supplement, whether by filing documents pursuant to the Exchange Act, the Securities Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements. 11 12 (f) Except as otherwise provided in subsection (m) of this Section, if reasonably requested by an Agent , on or prior to the date on which there shall be released to the general public interim financial statement information related to the Company with respect to each of the first three quarters of any fiscal year or preliminary financial statement information with respect to any fiscal year, the Company shall furnish such information to such Agent, confirmed in writing. The Company shall cause the Prospectus to be amended or supplemented to include or incorporate by reference financial information with respect thereto and corresponding information for the comparable period of the preceding fiscal year, as well as such other information and explanations as shall be necessary for an understanding thereof or as shall be required by the Securities Act or the regulations to the Securities Act. (g) Except as otherwise provided in subsection (m) of this Section, if reasonably requested by an Agent, on or prior to the date on which there shall be released to the general public financial information included in or derived from the audited financial statements of the Company for the preceding fiscal year, the Company shall furnish such information to such Agent, confirmed in writing, and shall cause the Registration Statement and the Prospectus to be amended, whether by the filing of documents pursuant the Exchange Act, the Securities Act or otherwise, to include or incorporate by reference such audited financial statements and the report or reports, and consent or consents to such inclusion or incorporation by reference, of the independent accountants with respect thereto, as well as such other information and explanations as shall be necessary for an understanding of such financial statements or as shall be required by the Securities Act or the Securities Act Regulations. (h) The Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering each twelve-month period beginning, in each case, not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in such Rule 158) of the Registration Statement with respect to each sale of Notes. (i) The Company will endeavor, in cooperation with the Agents, to qualify the Notes for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Agents may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Notes; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Notes have been qualified as above provided. The Company will promptly advise the Agents of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any such state or jurisdiction or the initiating or threatening of any proceeding for such purpose. (j) The Company, during the period when a Prospectus is required to be delivered under the Securities Act or the Exchange Act, will file promptly all documents required to be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act within the time periods prescribed by the Exchange Act and the Exchange Act Regulations. (k) During the term of this Agreement, the Company shall furnish to the Agents such relevant documents and certificates of officers of the Company relating to the business, operations and affairs of the Company, the Registration Statement, the Prospectus, any 12 13 amendments or supplements thereto, the Indentures, the Notes, this Agreement, any Terms Agreement, the Administrative Procedures and the performance by the Company of its obligations hereunder or thereunder as the Agents may from time to time reasonably request and shall notify the Agents promptly in writing of any change in the rating accorded any of the Company's debt securities by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act or the public announcement by any nationally recognized statistical rating organization that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company. (l) Between the date of any agreement by an Agent to purchase Notes as principal and the Settlement Date with respect to such agreement, the Company will not, without such Agent's prior consent, offer or sell, or enter into any agreement to sell, any debt securities of the Company (other than the Notes that are to be sold pursuant to such agreement and commercial paper in the ordinary course of business), except as may otherwise be provided in such agreement. (m) The Company shall not be required to comply with the provisions of subsection (e), (f) or (g) of this Section during any period from the time (i) an Agent shall have suspended solicitation of purchases of the Notes in its capacity as agent pursuant to a request from the Company and (ii) an Agent shall not then hold any Notes as principal purchased pursuant to an agreement by such Agent to purchase Notes as principal, to the time the Company shall determine that solicitation of purchases of the Notes should be resumed or shall subsequently enter into a new agreement with such Agent for such Agent to purchase Notes as principal. 4. Payment of Expenses. The Company covenants and agrees with the Agents that the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement including: (i) the preparation and filing of the Registration Statement and all amendments thereto and the Prospectus and any amendments or supplements thereto; (ii) the preparation, filing and reproduction of this Agreement and any Terms Agreements; (iii) the preparation, printing, issuance and delivery of the Notes, including any fees and expenses relating to the use of book-entry notes; (iv) the fees and disbursements of the Company's accountants and counsel, of the Trustee and its counsel, and of any Calculation Agent; (v) The reasonable fees and disbursements of your counsel incurred in connection with the establishment of the program relating to the Notes and incurred from time to time in connection with the transactions contemplated hereby; (vi) the qualification of the Notes under state securities laws in accordance with the provisions of Section 3(h) hereof, including filing fees and the reasonable fees and disbursements of your counsel in connection therewith and in connection with the preparation of any Blue Sky Survey and any Legal Investment Survey; 13 14 (vii) the preparation and delivery to each Agent in quantities as hereinabove stated of copies of the Registration Statement and any amendments thereto, and of the Prospectus and any amendments or supplements thereto, and the delivery by each Agent of the Prospectus and any amendments or supplements thereto in connection with solicitations or confirmations of sales of the Notes; (viii) the preparation, reproducing and delivery to each Agent of copies of the Indentures and all supplements and amendments thereto; (ix) any fees charged by rating agencies for the rating of the Notes; (x) the fees and expenses incurred in connection with the listing of the Notes on any securities exchange if the Company agrees to list the Notes; (xi) the fees and expenses, if any, incurred with respect to any filing with the National Association of Securities Dealers, Inc.; (xii) any advertising and other out-of-pocket expenses an Agent incurs with the approval of the Company; and (xiii) the cost of providing any CUSIP or other identification numbers for the Notes. It is understood, however, that, except as provided in this Section and Section 7 hereof, each Agent will pay all of its own costs and expenses, transfer taxes on resale of any of the Notes by an Agent, and any advertising expenses connected with any offers an Agent may make as principal. 5. Conditions of Obligations. The obligation of the Agents to purchase Notes as principal pursuant to any Terms Agreement or otherwise, the Agents' obligation to solicit offers to purchase Notes as agent of the Company and the obligation to purchase Notes of any purchaser of Notes sold through an Agent as agent will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company's officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent's obligation to solicit offers to purchase Notes, at the time of such solicitation and, in the case of an Agent's or any other purchaser's obligation to purchase Notes, at the time the Company accepts the offer to purchase such Notes and at the time of purchase) and (in each case) to the following additional conditions precedent: (a) At the time of such solicitation in the case of (i), (ii) and (v) below, or the time of such purchase, with respect to (i) to (v), as the case may be: (i) There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement that, in each Agent's reasonable judgment, is material and adverse and that makes it, in each Agent's reasonable judgment, impracticable to market the Notes except, in the case of any purchase of Notes, as 14 15 disclosed to each Agent in writing by the Company before an Agent or such other purchaser accepted the offer to purchase such Notes. (ii) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the SEC; and all requests for additional information on the part of the SEC shall have been complied with to each Agent's reasonable satisfaction. (iii) There shall not have occurred any (A) suspension or material limitation of trading generally on or by, as the case may be, the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (B) suspension of trading of any securities of the Company on any exchange or in the over-the-counter market, (C) declaration of a general moratorium on commercial banking activities in New York by either federal, New York State or Texas authorities or declaration of a banking moratorium by the relevant authorities in the country or countries of origin of foreign currency or currencies in which the Notes are denominated or payable or (D) any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in each Agent's judgment, is material and adverse and, in the case of any of the events described in clauses (iii)(A) through (D), such event, singly or together with any other such event, makes it, in each Agent's judgment, impracticable to market the Notes or to enforce contracts for the sale of the Notes except, in the case of any purchase of Notes, for any such event occurring before the Company accepted the offer to purchase such Notes. (iv) The rating assigned by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, to any debt securities of the Company shall not have been lowered nor shall any such rating agency have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company. (v) There shall have not come to an Agent's attention any facts which would cause such Agent to believe that the Prospectus, at the time it was required to be delivered to a purchaser of Notes, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time of delivery, not misleading. As used in this clause, "Prospectus" means the Prospectus in the form first provided to each Agent for use in confirming sales of the related Notes. (b) On the date hereof and, if called for by any agreement by an Agent to purchase Notes as principal, on the corresponding Settlement Date, each Agent shall have received: (A) The opinion, dated as of such date, of Raymond G. Smerge, Executive Vice President, Chief Legal Officer and Secretary (as to (i) through (vi) and (ix), (x) and (xiii) below) and Thompson & Knight, A Professional Corporation, special counsel for the Company (as to (vii), (viii), (xi), (xii) and (xiv) below) to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Nevada, with full 15 16 corporate power and authority to own its properties and conduct its business as described in the Prospectus and to perform its obligations under this Agreement; (ii) The Company has an authorized capitalization as set forth in the Prospectus, as amended or supplemented, and all of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable; (iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which the failure to so qualify would have a material adverse effect upon the Company and its subsidiaries, taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon certificates issued by various state authorities as deemed necessary by such counsel); (iv) Each subsidiary of the Company has been duly incorporated or organized as a limited liability company and is validly existing as a corporation or limited liability company, as the case may be, in good standing under the laws of its jurisdiction of incorporation; each subsidiary of the Company has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business and is in good standing under the laws of each jurisdiction in which the failure to so qualify would have a material adverse effect upon the Company and its subsidiaries, taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon certificates issued by various state authorities as deemed necessary by such counsel); and all of the outstanding shares of capital stock or outstanding interests of each such subsidiary have been duly and validly authorized and issued, are fully paid and nonassessable, and (except (i) for directors' qualifying shares, (ii) as set forth in Schedule I hereto, and (iii) as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims affecting transferability or voting; (v) To the best of such counsel's knowledge and other than as set forth or contemplated, or incorporated by reference, in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (vi) This Agreement and any applicable Terms Agreement with respect to the Notes have been duly authorized, executed and delivered by the Company and each constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with their respective terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles that may limit the availability of certain remedies 16 17 (including specific performance), and except to the extent that rights of indemnification thereunder may be limited by applicable law or equity principles; (vii) The Notes, in the form(s) certified by the Company as of the date hereof, have been duly authorized for issuance, offer and sale pursuant to this Agreement and, when issued, authenticated and delivered in accordance with this Agreement, any applicable Terms Agreement and the applicable Indenture and duly paid for by the purchasers thereof in accordance with this Agreement, any applicable Terms Agreement and the applicable Indenture, will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the applicable Indenture and enforceable against the Company in accordance with their respective terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles that may limit the availability of certain remedies (including specific performance); and the Notes and the Indentures conform in all material respects to the descriptions thereof in the Prospectus; (viii) Each of the Indentures has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding instrument enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles that may limit the availability of certain remedies (including specific performance); and each of the Indentures has been duly qualified under the Trust Indenture Act; (ix) The Remarketing Agreement, if applicable, has been duly and validly authorized, executed and delivered by the Company and, assuming the Remarketing Agreement has been duly authorized, executed and delivered by the Remarketing Agent, will be a valid and legally binding agreement of the Company. (x) The issue and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, any Remarketing Agreement, if applicable, the Indentures, and this Agreement and any applicable Terms Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Articles of Incorporation, as amended or restated, or the Bylaws of the Company or any statute or order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; (xi) To the best of such counsel's knowledge, no consent, approval, authorization, order, registration or qualification of or with any such court or 17 18 governmental agency or body is required for the performance by the Company of its obligations under this Agreement, for the issue and sale of the Notes or the consummation of the other transactions contemplated by this Agreement, any Terms Agreement, the Remarketing Agreement or the Indentures, except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by each Agent; (xii) The Registration Statement is effective under the Securities Act, and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under the Securities Act; (xiii) The documents incorporated by reference in the Prospectus, as amended or supplemented (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the SEC, as the case may be, and as of the date this opinion is delivered, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the SEC thereunder; nothing has come to the attention of such counsel that would cause such counsel to believe that any of such documents, when they became effective or were so filed, as the case may be (other than the financial statements and related schedules therein, as to which such counsel need express no belief), and as of the date this opinion is delivered contained, in the case of a registration statement that became effective under the Securities Act, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein not misleading, and, in the case of other documents that were filed under the Securities Act or the Exchange Act with the SEC, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such documents were so filed, not misleading; and such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus that are not filed or incorporated by reference or described as required; and (xiv) such counsel (1) believes that (other than the financial statements and related schedules therein as to which such counsel need express no belief and except for that part of the Registration Statement that constitutes the Form T-l heretofore referred to) each part of the Registration Statement, as amended, if applicable, when it became effective (or if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by the Company with the SEC subsequent to the effectiveness of the Registration Statement, then at the time such amendment became effective or at the time of the most recent such filing, as the case may be) did not and, as of the date such opinion is delivered, does not contain any untrue statement of a material fact or did not and does not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) is of the opinion that the Registration Statement and the Prospectus, as amended or supplemented, if 18 19 applicable (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), comply as to form in all material respects with the Securities Act and the rules and regulations of the SEC thereunder and (3) believes that (other than the financial statements and related schedules therein as to which such counsel need express no belief) the Prospectus, as of the date such letter is delivered (or, if such letter is being delivered in connection with the purchase of Notes from the Company by an Agent as principal pursuant to Section 2(a) hereof, at the date of any agreement by an Agent to purchase such Notes as principal and at the Settlement Date with respect thereto, as the case may be) (did not and) does not include any untrue statement of a material fact or (did not and) does not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (B) The opinion, dated as of such date, of Milbank, Tweed, Hadley & McCloy, your special counsel, covering the incorporation of the Company, the validity of the Remarketing Agreement, the Indentures, the Notes, the Registration Statement, the Prospectus, as amended or supplemented, and other related matters as the Agents may reasonably request. (c) On the date hereof and, if called for by any Terms Agreement, on the corresponding Settlement Date, each Agent shall have received a certificate, dated as of the date hereof or the Settlement Date, as the case may be, signed by (i) the Chairman, Vice Chairman, President or any Vice President and (ii) the Chief Financial Officer or Treasurer of the Company to the effect that (x) the representations and warranties of the Company contained herein are true and correct as of such date and the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied on or before such date and (y) none of the conditions referred to in Section 5(a) exist. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened. (d) On the date hereof and, if required by any Terms Agreement, on the corresponding Settlement Date, the Company's independent public accountants shall have furnished to the Agents a letter or letters, dated as of the date hereof or such Settlement Date, as the case may be, in form and substance satisfactory to the Agents containing statements and information of the type ordinarily included in accountant's "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the Prospectus. (e) On the date hereof and on each Settlement Date, the Company shall have furnished to the Agents such appropriate further information, certificates, documents and opinions as the Agents may reasonably request or as the Agents' counsel may require for purposes of rendering the opinion referred to in Section 5(b)(B) and in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of Notes as herein contemplated shall be satisfactory in form and substance to each Agent and its counsel. 19 20 (f) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, as amended or supplemented, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, as amended or supplemented, and (ii) since the respective dates as of which information is given in the Prospectus, as amended or supplemented, there shall not have been any material change in the capital stock, outstanding interests (other than through exercise of employee stock options) or long-term debt of the Company and any of its subsidiaries, taken as a whole (other than borrowings and repayments made in the ordinary course of business), or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your reasonable judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or delivery of the Notes on the terms and in the manner contemplated in the Prospectus, as amended or supplemented; (g) Subsequent to the date of any Terms Agreement relating to the Notes, no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization," as that term is defined by the SEC for purposes of Rule 436(g)(2) under the Securities Act; (h) Subsequent to the date of any Terms Agreement relating to the Notes, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a general moratorium on commercial banking activities in New York declared by either federal or New York State authorities; or (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date of such Terms Agreement, of a national emergency or war if the effect of any such event specified in this clause (iii), in your reasonable judgment, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Prospectus, as amended or supplemented; and If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, the Agents may terminate this Agreement by notice to the Company at any time and any such termination shall be without liability to the Company, except that the provisions of Sections 3(i), 4, 7, 8, 11, 12, and 15 shall remain in effect. 6. Additional Agreements of the Company. (a) Each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for a change in the interest rates of Notes or for a change the Agents deem to be immaterial, and, unless the Agents shall otherwise specify, other than by an amendment or supplement which relates exclusively to an offering of debt securities other than the Notes) or (ii) there is filed with the SEC any document incorporated by reference into the Prospectus (other than any Current Report on Form 8-K relating exclusively to the issuance of debt securities under the Registration Statement, unless the Agents shall otherwise specify) or (iii) (if required pursuant to the terms of an agreement by an Agent to purchase Notes as principal) the Company sells Notes to an Agent pursuant to an agreement by such Agent to purchase Notes as principal or (iv) the Company sells Notes in a form not previously certified to the Agents by the Company, the Company shall furnish or cause to be furnished to each Agent 20 21 forthwith a certificate dated the date of filing with the SEC of such supplement or document, the date of effectiveness of such amendment, or the date of such sale, as the case may be, in form satisfactory to each Agent to the effect that the statements contained in the certificate referred to in Section 5(c) hereof which were last furnished to such Agent are true and correct at the time of such amendment, supplement, filing or sale, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 5(c), modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate. (b) Each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for a change in the interest rates of the Notes or for a change the Agents deem to be immaterial, and, unless the Agents shall otherwise specify, other than by an amendment or supplement which relates exclusively to an offering of debt securities other than the Notes) or (ii) there is filed with the SEC any document incorporated by reference into the Prospectus (other than any Current Report on Form 8-K or Quarterly Report on Form 10-Q, unless the Agents shall otherwise specify), or (iii) (if required pursuant to the terms of an agreement by an Agent to purchase Notes as principal) the Company sells Notes to an Agent pursuant to an agreement by such Agent to purchase Notes as principal or (iv) the Company sells Notes in a form not previously certified to the Agents by the Company, the Company shall furnish or cause to be furnished forthwith to each Agent and to its counsel a written opinion of Thompson & Knight, independent counsel for the Company or other counsel satisfactory to the Agents, and an opinion of Raymond G. Smerge, Executive Vice President, Chief Legal Officer and Secretary of the Company, dated the date of filing with the SEC of such supplement or document, the date of effectiveness of such amendment, or the date of such sale, as the case may be, in form and substance satisfactory to the Agents, of the same tenor as their respective opinions referred to in Section 5(b)(A) hereof, but modified, as necessary, to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion; or, in lieu of such opinion, counsel last furnishing such opinion to the Agents shall furnish the Agents with a letter to the effect that the Agents may rely on such last opinion to the same extent as though it was dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance). (c) Each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information unless the Agents shall otherwise specify, other than an amendment or supplement which relates exclusively to an offering of debt securities other than the Notes or there is filed with the SEC any document incorporated by reference into the Prospectus which contains additional financial information or (ii) (if required pursuant to the terms of any agreement by an Agent to purchase Notes as principal) the Company sells Notes to an Agent pursuant to any agreement by such Agent to purchase Notes as principal, the Company shall cause its independent public accountants forthwith to furnish each Agent a letter, dated the date of effectiveness of such amendment, supplement or document with the SEC, or the date of such sale, as the case may be, in form satisfactory to each Agent, of the same tenor as the letter referred to in Section 5(d) hereof but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter. 21 22 7. Indemnification. (a) Indemnification of the Agent. The Company agrees to indemnify and hold each Agent and each person, if any, who controls each Agent within the meaning of Section 15 of the Securities Act harmless as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or such alleged untrue statement or omission was made in reliance upon and in conformity with information furnished to the Company in writing by each Agent expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) or in reliance upon the Trustee's Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 filed as an exhibit to the Registration Statement; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Agents) reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above. (b) Indemnification of Company. Each Agent agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished to the Company in writing by the Agents expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto). (c) General. Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense and, to the extent that it 22 23 wishes, jointly with any other indemnifying party, similarly notified, in the defense of such action with counsel chosen by it (who shall not, except with the consent of the indemnified party, be counsel to such indemnified party). In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 or Section 8 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. 8. Contribution. (a) If the indemnification provided for in Section 7 is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein in connection with any offering of Notes, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Agents on the other from the offering of such Notes or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Agents on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Agents on the other in connection with the offering of such Notes shall be deemed to be in the same respective proportions as the total net proceeds from the offering of such Notes (before deducting expenses) received by the Company bear to the total discounts and commissions received by the Agents in respect thereof. The relative fault of the Company and of each Agent shall be determined by reference to, among other things, whether the untrue or allegedly untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or by the Agents on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. (b) The Company and each Agent agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (a) above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in paragraph (a) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Agent shall be required to contribute any amount in excess of the amount by which the total price at which the Notes referred to in paragraph (a) above that were offered and sold to the public through such Agent 23 24 exceeds the amount of any damages that such Agent would have otherwise been required to pay by reason of such untrue or allegedly untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Each Agent's obligation to contribute pursuant to this Section 8 is several, in proportion to the respective principal amounts of Notes purchased or sold by each Agent, and not joint. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. 9. Termination. (a) This Agreement may be terminated at any time either by the Company or by an Agent with respect to such Agent upon the giving of 30 days' written notice of such termination to the other party hereto. The termination of this Agreement shall not require termination of any agreement by an Agent to purchase Notes as principal, and the termination of any such agreement shall not require termination of this Agreement. (b) An Agent may terminate any agreement to purchase Notes from the Company as principal, immediately upon notice to the Company, at any time prior to the Settlement Date relating thereto, if (i) there has been, since the date of such agreement or since the respective dates as of which information is given in the Prospectus, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, or (ii) a stop order suspending the effectiveness of the Registration Statement shall have been issued or a proceeding for that purpose shall have been initiated or threatened by the SEC, or (iii) there shall have occurred any (A) suspension or material limitation of trading generally on or by, as the case may be, the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (B) suspension of trading of any securities of the Company on any exchange or in the over-the-counter market, (C) declaration of a general moratorium on commercial banking activities in New York by either federal, New York State or Texas authorities or declaration of a banking moratorium by the relevant authorities in the country or countries of origin of foreign currency or currencies in which the Notes are denominated or payable or (D) any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in an Agent's reasonable judgment, is material and adverse and, in the case of any of the events described in clauses (iii)(A) through (D), such event, singly or together with any other such event, makes it, in an Agent's reasonable judgment, impracticable to market the Notes or to enforce contracts for the sale of the Notes, or (iv) the rating assigned by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, to any debt securities of the Company as of the date of such agreement shall have been lowered since that date or if any such rating organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company, or (v) there shall have come to an Agent's attention any facts that would cause such Agent to believe that the Prospectus, at the time it was required to be delivered to a purchaser of Notes, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time of such delivery, not misleading. As used in this 24 25 Section, the term "Prospectus" means the Prospectus in the form first provided to each Agent for use in confirming sales of the related Notes. (c) In the event of any such termination, neither the Company nor an Agent as to which this Agreement has been terminated will have any liability to each other, except that (i) an Agent terminating this Agreement shall be entitled to any commission earned in accordance with the fifth paragraph of Section 2(b) hereof, (ii) if at the time of termination (a) an Agent shall own any Notes purchased pursuant to any agreement by such Agent to purchase Notes as principal with the intention of reselling them or (b) an offer to purchase any of the Notes has been accepted by the Company but the time of delivery to the purchaser or his agent of the Note or Notes relating thereto has not occurred, the covenants set forth in Sections 2(d), 3 and 6 hereof shall remain in effect until such Notes are so resold or delivered, as the case may be, and (iii) the provisions of Sections 3(h) and 4 hereof, the indemnity and contribution agreements set forth in Sections 7 and 8 hereof, and the provisions of Sections 11, 13 and 15 hereof shall remain in effect. 10. Failure to Purchase. If the Company and two or more Agents enter into an agreement pursuant to which such Agents agree to purchase Notes from the Company as principal and one or more Agents shall fail at the relevant Settlement Date to purchase the Notes which an Agent is obligated to purchase (the "Defaulted Notes"), then the nondefaulting Agents shall have the right, within 24 hours thereafter, to make arrangements for one Agent or one or more other Agents to purchase all, but not less than all, of the Defaulted Notes in such amounts as may be agreed upon and upon the terms herein set forth; provided, however, that if such arrangements shall not have been completed within such 24-hour period, then: (A) if the aggregate principal amount of Defaulted Notes does not exceed 10% of the aggregate principal amount of Notes to be so purchased by all of such Agents on such Settlement Date, the nondefaulting Agents shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective initial purchase obligations bear to the purchase obligations of all nondefaulting Agents; or (B) if the aggregate principal amount of Defaulted Notes exceeds 10% of the aggregate principal amount of Notes to be so purchased by all of such Agents on such Settlement Date, such agreement shall terminate without liability on the part of any nondefaulting Agent. No action taken pursuant to this paragraph shall relieve any defaulting Agent from liability in respect of its default. In the event of any such default which does not result in a termination of such agreement, either the nondefaulting Agents or the Company shall have the right to postpone the relevant Settlement Date for a period not exceeding seven days in order to effect any required changes in the Registration Statement or the Prospectus or in any other documents or arrangements. 11. Representations and Indemnities to Survive. The respective indemnity and contribution agreements, representations, warranties and other statements of the Company, its officers and each Agent set forth in or made pursuant to this Agreement or any agreement by an Agent to purchase Notes as principal will remain in full force and effect, regardless of any termination of this Agreement or any such agreement, any investigation made by or on behalf of 25 26 an Agent or the Company or any of the officers, directors or controlling persons referred to in Sections 7 and 8 and delivery of and payment for the Notes. 12. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to each Agent, will be mailed, delivered or telefaxed and confirmed to each Agent at: First Chicago Capital Markets, Inc. 1 First National Plaza Chicago, Illinois 60670 Attention: Corporate Securities Structuring Telephone: 312-732-8270 Telecopy: 312-732-4172 Credit Suisse First Boston Corporation 11 Madison Avenue New York, N.Y. 10010 Attention: Short and Medium Term Finance Telephone: 212-325-7198 Telecopy: 212-325-8183 Morgan Stanley & Co. Incorporated 1585 Broadway 2nd Floor New York, N.Y. 10036 Attention: Manager - Continuously Offered Products Telephone: 212-761-2000 Telecopy: 212-761-0780 with a copy to: Morgan Stanley & Co. Incorporated 1585 Broadway 34th Floor New York, N.Y. 10036 Attention: Peter Cooper, Investment Banking Information Center Telephone: 212-761-8385 Telecopy: 212-761-0260 NationsBanc Montgomery Securities LLC 100 North Tryon Street Mail Code NC1-007-07-01 Charlotte, North Carolina 28255 Attention: Debt Finance Group/Medium Term Notes Telephone: 704-386-7800 Telecopy: 704-388-9939 26 27 Warburg Dillon Read LLC 677 Washington Blvd. Stamford, CT 06901 Attention: Debt Syndicate Telephone: 203-719-1342 Telecopy: 203-719-7139 or, if sent to the Company, will be mailed, delivered or telefaxed and confirmed to it at: Centex Corporation, 2728 North Harwood Street, Dallas, Texas 75201, Attention: Vicki Roberts Telephone: 214-981-6533 Telecopy: 214-981-6858 13. Successors. This Agreement and any Terms Agreement will inure to the benefit of and be binding upon each of the parties hereto and their respective successors and the officers, directors and controlling persons referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any Terms Agreement or any provision herein or therein contained. This Agreement and any applicable Terms Agreement and all conditions and provisions hereof and thereof are intended to be for the sole and exclusive benefit of the parties hereto and respective successors and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Notes shall be deemed to be a successor by reason merely of such purchase. 14. Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. 15. Applicable Law. This Agreement and all the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such State. 16. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement. 27 28 If the foregoing is in accordance with your respective understandings of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this instrument and your respective acceptances shall represent a binding agreement between the Company and each Agent. Very truly yours, CENTEX CORPORATION By: --------------------------------------- Title: The foregoing Agreement is hereby confirmed and accepted as of the date first above written. FIRST CHICAGO CAPITAL MARKETS, INC. By ------------------------------------------- Title: CREDIT SUISSE FIRST BOSTON CORPORATION By ------------------------------------------- Title: MORGAN STANLEY & CO. INCORPORATED By ------------------------------------------- Title: NATIONSBANC MONTGOMERY SECURITIES LLC By ------------------------------------------- Title: WARBURG DILLON READ LLC By ------------------------------------------- Title: 28 29 EXHIBIT A CENTEX CORPORATION SENIOR MEDIUM-TERM NOTES, SERIES A TERMS AGREEMENT ___________19__ Centex Corporation 2728 North Harwood Street Dallas, Texas 75201 Attention: Re: Distribution Agreement dated November 24, 1998 (the "Distribution Agreement") Subject to the terms and conditions set forth or incorporated by reference herein, the undersigned agrees to purchase $ (or principal amount of foreign currency or composite currency) aggregate principal amount of your Senior Medium-Term Notes having the following terms: Interest Rate or Formula: If Fixed Rate Note, Interest Rate: Default Rate: Interest Payment Dates: If Floating Rate Note, Interest Rate Basis(es): If LIBOR, [ ] LIBOR Reuters [ ] LIBOR Telerate Index Currency: If CMT Rate, Designated CMT Telerate Page: Designated CMT Maturity Index: Index Maturity: Spread and/or Spread Multiplier, if any: Initial Interest Rate, if any: Initial Interest Reset Date: Interest Reset Dates: Interest Payment Dates: Default Rate: Maximum Interest Rate, if any: Minimum Interest Rate, if any: Fixed Rate Commencement Date, if any: Fixed Interest Rate, if any: Calculation Agent: 29 30 If Redeemable: Initial Redemption Date: Initial Redemption Percentage: Annual Redemption Percentage Reduction, if any: If Repayable: Optional Repayment Date(s): Original Issue Date: Stated Maturity Date: Specified Currency: Authorized Denomination: Purchase Price: ___%, plus accrued interest, if any, from ___________ Settlement Date and Time: Additional/Other Terms: The certificates, opinions and letters referred to in Sections 6(a), (b) and (c) of the Distribution Agreement [will/will not] be required. All provisions contained in the Distribution Agreement, dated November 24, 1998, between Centex Corporation and _________________________ are herein incorporated by reference in their entirety and shall be deemed to be a part of this Terms Agreement to the same extent as if such provisions had been set forth in full here in. [Name of Agent] By ------------------------------------- Name: Title: Accepted: CENTEX CORPORATION By --------------------------------- Name: Title: 30 31 EXHIBIT B CENTEX CORPORATION SUBORDINATED MEDIUM-TERM NOTES, SERIES A TERMS AGREEMENT _____________19__ Centex Corporation 2728 North Harwood Street Dallas, Texas 75201 Attention: Re: Distribution Agreement dated November 24, 1998 (the "Distribution Agreement") Subject to the terms and conditions set forth or incorporated by reference herein, the undersigned agrees to purchase $ (or principal amount of foreign currency or composite currency) aggregate principal amount of your Subordinated Medium-Term Notes having the following terms: Interest Rate or Formula: If Fixed Rate Note, Interest Rate: Default Rate: Interest Payment Dates: If Floating Rate Note, Interest Rate Basis(es): If LIBOR, [ ] LIBOR Reuters [ ] LIBOR Telerate Index Currency: If CMT Rate, Designated CMT Telerate Page: Designated CMT Maturity Index: Index Maturity: Spread and/or Spread Multiplier, if any: Initial Interest Rate, if any: Initial Interest Reset Date: Interest Reset Dates: Interest Payment Dates: Default Rate: Maximum Interest Rate, if any: Minimum Interest Rate, if any: Fixed Rate Commencement Date, if any: Fixed Interest Rate, if any: Calculation Agent: 31 32 If Redeemable: Initial Redemption Date: Initial Redemption Percentage: Annual Redemption Percentage Reduction, if any: If Repayable: Optional Repayment Date(s): Original Issue Date: Stated Maturity Date: Specified Currency: Authorized Denomination: Purchase Price: ___%, plus accrued interest, if any, from ___________ Settlement Date and Time: Additional/Other Terms: The certificates, opinions and letters referred to in Sections 6(a), (b) and (c) of the Distribution Agreement [will/will not] be required. All provisions contained in the Distribution Agreement, dated November 24, 1998, between Centex Corporation and _________________________ are herein incorporated by reference in their entirety and shall be deemed to be a part of this Terms Agreement to the same extent as if such provisions had been set forth in full here in. [Name of Agent] By ------------------------------------- Name: Title: Accepted: CENTEX CORPORATION By ------------------------------------ Name: Title: 32 33 EXHIBIT C CENTEX CORPORATION ADMINISTRATIVE PROCEDURES FOR FIXED RATE, FLOATING RATE AND REMARKETED MEDIUM TERM NOTES (DATED AS OF NOVEMBER 24, 1998) Fixed Rate Medium Term Notes (the "Fixed Rate Notes"), Floating Rate Medium Term Notes (the "Floating Rate Notes") and Remarketed Medium Term Notes (the "Remarketed Notes"), all Due Nine Months or More From Date of Issue (collectively, the "Notes"), are to be offered from time to time by Centex Corporation, a Nevada corporation (the "Company"), to or through First Chicago Capital Markets, Inc., Credit Suisse First Boston Corporation, Morgan Stanley Dean Witter, NationsBanc Montgomery Securities LLC and Warburg Dillon Read LLC (individually, an "Agent" and collectively, the "Agents"), pursuant to a Distribution Agreement dated November 24, 1998 (the "Distribution Agreement") between the Company and the Agents. The Distribution Agreement provides both for the sale of Notes by the Company to one or more of the Agents as principal for resale to investors and other purchasers and for the sale of Notes by the Company directly to investors (as may from time to time be agreed to by the Company and the related Agent or Agents) in which case the Agents will act as agents of the Company in soliciting Note purchases. Each sale of Notes will be made in accordance with terms agreed upon by the related Agent or Agents and the Company in a Terms Agreement in the form included in Exhibit A to the Distribution Agreement. Only those provisions in these Administrative Procedures that are applicable to the particular role that an Agent will perform shall apply to the offer and sale of the relevant Notes. The Notes will be issued as one or more series of debt securities and will be either Senior Debt Securities ("Senior Notes") or Subordinated Debt Securities ("Subordinated Notes"). The Senior Notes will be issued under an Indenture, dated as of October 1, 1998, as supplemented by a first Supplemental Indenture thereto dated as of October 1, 1998 (the "Senior Indenture"), and the Subordinated Notes will be issued under an Indenture dated as of March 12, 1987, as supplemented by a fourth Supplemental Indenture thereto dated as of November 1, 1998 (the "Subordinated Indenture" and, together with the Senior Indenture, the "Indentures"), as each may be amended, supplemented or modified from time to time, between the Company and Chase Bank of Texas, National Association, as trustee with respect to the Notes (formerly, Texas Commerce Bank National Association) (together with any successor in such capacity, the "Trustee"). In accordance with the provisions of the Indentures, the Trustee will act as Authenticating Agent, Transfer Agent and Paying Agent with respect to the Notes. Unless the context otherwise requires, references herein to the Indentures include the form of Note adopted in accordance with the terms of the Indentures. Registration Statements on Form S-3 (No. 33-61223 and No. 333-65217) (together, the "Registration Statement") with respect to debt securities, including the Notes, have been filed under the Securities Act of 1933, as amended (the "1933 Act"), with the Securities and Exchange Commission (the "Commission") and declared effective on August 3, 1995 and October 3, 1998, 34 respectively. The most recent base Prospectus included in the Registration Statement, as supplemented by the Prospectus Supplement dated November 13, 1998 with respect to the Notes, is herein referred to as the "Prospectus". The most recent supplement to the Prospectus setting forth the purchase price, interest rate and other terms of the Notes (as applicable) is herein referred to as the "Pricing Supplement." The Notes will either be issued in (a) fully registered book-entry form and represented by one or more fully registered Notes without coupons (each, a "Global Note") delivered to the Trustee, as custodian for The Depository Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC, or (b) in certificated form (each, a "Certificated Note") delivered to the investor or other purchaser thereof or a person designated by such investor or other purchaser. Owners of beneficial interests in Notes issued in book-entry form will be entitled to physical delivery of Notes in certificated form equal in principal amount to their respective beneficial interests only upon certain limited circumstances described in the Prospectus. As set forth in the Prospectus, the Company shall appoint one or more remarketing agents (each, a "Remarketing Agent" and, collectively, the "Remarketing Agents") with respect to the Remarketed Notes pursuant to a remarketing agreement (the "Remarketing Agreement"). General procedures relating to the initial issuance of Notes are set forth in Part I hereof. Certain procedures relating to the initial issuance of Notes issued in book-entry form and for remarketing of Remarketed Notes are set forth in Part II hereof. Procedures for Certificated Notes are set forth in Part III hereof. Certain additional procedures relating to the remarketing of Remarketed Notes are set forth in Part IV hereof. Procedures relating to the payment of principal and interest are set forth in Part V hereof. In the event of any discrepancy between these Administrative Procedures and the Distribution Agreement, the Remarketing Agreement, the Letters of Representations or the Indentures, the latter documents shall govern. 2 35 PART I: PROCEDURES FOR INITIAL ISSUANCE OF NOTES Date of Issuance/ Each Note will be dated as of the date of its Authentication: authentication by the Trustee. Each Note shall also bear an original issue date (each, an "Original Issue Date"). The Original Issue Date shall remain the same for all Notes subsequently issued upon transfer, exchange or substitution of an original Note regardless of their dates of authentication. Maturities: Each Note will mature on a date nine months or more from its Original Issue Date (the "Stated Maturity Date") selected by the investor or other purchaser and agreed to by the Company. Registration: Each Note will be issued as a Book-Entry Note represented by one or more fully registered Global Securities or as a fully registered Certificated Note; except that Remarketed Notes will be issued only as Book-Entry Notes. Denominations: Unless otherwise provided in the applicable Pricing Supplement, the Notes will be issued in denominations of $1,000 and integral multiples thereof; except that Remarketed Notes will be issued in minimum denominations of $100,000 and integral multiples of $1,000 in excess thereof. Preparation of Pricing If any offer to purchase a Note is accepted by Supplement: the Company, the Company will promptly prepare a Pricing Supplement reflecting the terms of such Note and file such Pricing Supplement with the Commission in accordance with Rule 424 under the 1933 Act. Information to be included in the Pricing Supplement shall include: 1. the name of the Company; 2. the title of the Notes; 3. the date of the Pricing Supplement and the dates of the Prospectus and Prospectus Supplement to which the Pricing Supplement relates; 4. the name of the Offering Agent (as hereinafter defined); 5. with respect to Notes sold to the Agent as principal, whether such Notes will be resold by the Offering 3 36 Agent to investors and other purchasers (i) at a fixed public offering price of a specified percentage of their principal amount, (ii) at varying prices related to prevailing market prices at the time of resale to be determined by the Offering Agent or (iii) at 100% of their principal amount; 6. with respect to Notes sold to an investor or other purchaser through the Offering Agent acting as agent for the Company, whether such Notes will be sold at (i) 100% of their principal amount or (ii) at a specified percentage of their principal amount; 7. the Offering Agent's commission or underwriting discount; 8. net proceeds to the Company; 9. any other provisions of the Notes material to investors or other purchasers of the Notes not otherwise specified in the Prospectus. One copy of such filed Pricing Supplement will be sent by telecopy or overnight express (for delivery as soon as practicable following the trade, but in no event later than 11:00 a.m. New York City time, on the Business Day following the applicable trade date) to the Trustee at 2200 Ross Avenue, 5th floor, Dallas, Texas 75201, Attention: Michael Scrivner, telecopier: (214) 965-3577, and to the Agent that made or presented the offer to purchase the applicable Note (in such capacity, the "Offering Agent") at the following applicable address: if to First Chicago Capital Markets, Inc., to: One First National Plaza, Suite 0463, Chicago, Illinois 60670, Attention: Evonne W. Taylor, telecopier: (312) 732-4172; if to Credit Suisse First Boston Corporation, to: 11 Madison Avenue, New York, New York 10010, Attention: Helena Willner, telecopier: (212) 325- 8183; if to Morgan Stanley Dean Witter, to: 1585 Broadway, New York, New York 10036, Attention: Harold Hendershot III, telecopier: (212) 761-0783; if to NationsBanc Montgomery Securities LLC, to : Capital Market Services, 100 North Tyron Street, NC1-007-07-01, Charlotte, North Carolina 28255, Attention: Jennifer Arens, telecopier: (704) 388-9939; if to Warburg Dillon Read LLC, to: 535 Madison Avenue, New York, New York 10022, Attention: Peter 4 37 Foote, telecopier: (203) 719-7139. For record keeping purposes, one copy of each Pricing Supplement, as so filed, shall also be mailed or telecopied to Milbank, Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New York, New York 10005-1413, Attention: Robert Williams, Esq. In each instance that a Pricing Supplement is prepared, the Offering Agent will provide a copy of such Pricing Supplement to each investor or purchaser of the relevant Notes or its agent. Pursuant to Rule 434 ("Rule 434") under the 1933 Act, the Pricing Supplement may be delivered separately from the Prospectus. Outdated Pricing Supplements (other than those retained for files) will be destroyed. Settlement: The receipt of immediately available funds by the Company in payment for a Note and the authentication and delivery of such Note shall, with respect to such Note, constitute "settlement." Offers accepted by the Company will be settled in three Business Days, or at a time as the purchaser, the applicable Agent and the Company shall agree, pursuant to the timetable for settlement set forth below in Part II and in Part III hereof under "Settlement Procedures" with respect to Global Notes and Certificated Notes, respectively (each such date fixed for settlement is hereinafter referred to as a "Settlement Date"). If procedures A and B of the applicable Settlement Procedures with respect to a particular offer are not completed on or before the time set forth under the "Settlement Procedures Timetable," such offer shall not be settled until the Business Day next following the completion of settlement procedures A and B or such later date as the purchaser, the applicable Agent and the Company shall agree. The foregoing settlement procedures may be modified, with respect to any purchase of Notes by an Agent as principal, if so agreed by the Company and such Agent. Remarketing Settlement Procedures are set forth in Part IV hereof under Settlement Procedures for Remarketing. Delivery of Prospectus and A copy of the most recent Prospectus covering Applicable Pricing the Notes and applicable Pricing Supplement, Supplement: which pursuant to Rule 434 may be delivered separately from the Prospectus, must accompany or precede the earlier of (a) the written confirmation of a sale sent to an investor or other purchaser 5 38 or its agent and (b) the delivery of Notes to an investor or other purchaser or its agent. Delivery of the Prospectus and Pricing Supplement shall be the responsibility of the Offering Agent. Acceptance and Rejection of If agreed upon by the Offering Agent and the Offers from Solicitation as Company, then the Offering Agent acting solely Offering Agents: as agent for the Company and not as principal will solicit purchases of the Notes. The Offering Agent will communicate to the Company, orally or in writing, each reasonable offer to purchase Notes solicited by the Offering Agent on an agency basis, other than those offers rejected by the Offering Agent. The Offering Agent has the right, in its discretion reasonably exercised, to reject any proposed purchase of Notes, as a whole or in part, and any such rejection shall not be a breach of the Offering Agent's agreement contained in the Distribution Agreement. The Company has the sole right to accept or reject any proposed purchase of Notes, in whole or in part, and any such rejection shall not be a breach of the Company's agreement contained in the Distribution Agreement. The Offering Agent has agreed to make reasonable efforts to assist the Company in obtaining performance by each purchaser whose offer to purchase Notes has been solicited by the Offering Agent and accepted by the Company. Authenticity of Signatures: The Offering Agent will have no obligation or liability to the Company or the Trustee in respect of the authenticity of the signature of any officer, employee or agent of the Company or the Trustee on any Note. Documents Incorporated by The Company shall supply the Offering Agent Reference: with an adequate supply of all documents incorporated by reference in the Registration Statement and the Prospectus. 6 39 PART II: DTC PROCEDURES FOR INITIAL ISSUANCE OF NOTES ISSUED IN BOOK-ENTRY FORM AND FOR REMARKETING OF REMARKETED NOTES In connection with the qualification of Notes issued initially in book-entry form (each, a "Global Note") for eligibility in the book-entry system maintained by DTC, the Trustee will perform the custodial, document control and administrative functions described below, in accordance with its respective obligations under a Letter of Representations, dated October 26, 1998, relating to the issuance of Senior Notes, and a Letter of Representations, dated November 18, 1998, relating to the issuance of Subordinated Notes, both from the Company and the Trustee to DTC (collectively, the "Letters of Representations"), and a Certificate Agreement, dated December 2, 1988, between the Trustee and DTC, as amended (the "Certificate Agreement"), and its obligations as a participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS"). Issuance: All Fixed Rate Notes issued in book-entry form having the same Original Issue Date, Specified Currency, Interest Rate, Default Rate, Interest Payment Dates, redemption and/or repayment terms, if any, and Stated Maturity Date (collectively, the "Fixed Rate Terms") will be represented initially by a single Global Note. All Floating Rate Notes issued in book-entry form having the same Original Issue Date, Interest Category, formula for the calculation of interest (including the Interest Rate Basis or Bases, which may be the CD Rate, the CMT Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the Federal Funds Rate, LIBOR, the Prime Rate or the Treasury Rate or any other interest rate basis or formula, and Spread and/or Spread Multiplier, if any), Day Count Convention, Initial Interest Rate, Default Rate, Index Maturity (if applicable), Minimum Interest Rate, if any, Maximum Interest Rate, if any, redemption and/or repayment terms, if any, Interest Payment Dates, Initial Interest Reset Date, Interest Reset Dates and Stated Maturity Date (collectively, the "Floating Rate Terms") will be represented initially by a single Global Note. For other variable terms with respect to the Fixed Rate Notes and Floating Rate Notes, see the Prospectus and the applicable Pricing Supplement. All Remarketed Notes issued having the same Agent, Original Issue Date, Initial Interest Rate, Initial Interest Rate Period and Stated Maturity Date and other terms will be represented 7 40 initially by a single Global Note in fully registered form without coupons. All such initial terms will be recorded by the Trustee on Annex A to such Global Note. The terms of remarketing from time to time will be evidenced by the records maintained by the Trustee. All Remarketed Notes subsequently remarketed on the same Interest Adjustment Date in the same Interest Rate Mode having the same Interest Rate, Interest Rate Period and other terms will be represented by a single Global Note. Each Global Note will be dated and issued as of the date of its authentication by the Trustee. The date from which interest will begin to accrue with respect to each Note will be (a) with respect to an original Note (or any portion thereof), its Original Issue Date and (b) with respect to any Note (or portion thereof) issued subsequently upon exchange of a Note or in lieu of a destroyed, lost or stolen Note, the most recent Interest Payment Date to which interest has been paid or duly provided for on the predecessor Note or Notes (or if no such payment or provision has been made, the Original Issue Date of the predecessor Note or Notes), regardless of the date of authentication of such subsequently issued Note. No Global Note shall represent any Note issued in certificated form. Identification: The Company has arranged with the CUSIP Service Bureau of Standard & Poor's Ratings Services (the "CUSIP Service Bureau") for the reservation of two series of CUSIP numbers, each series consisting of approximately 900 CUSIP numbers which have been reserved for and relate to the Senior Fixed Rate and Senior Floating Rate Global Notes in the first instance, to the Remarketed Global Notes in the second instance, and to the Subordinated Fixed Rate and Subordinated Floating Rate Global Notes in the third instance. The Company has delivered to each of the Trustee and DTC such list of such CUSIP numbers. The Trustee will assign CUSIP numbers to the Global Notes upon initial issuance and upon remarketing in the case of Remarketed Notes as described above and then advise the Company by telephone and facsimile transmission or other electronic transmission of such CUSIP number, after receiving from the Company the information specified in Part I above or, as the case may be, Part IV below. 8 41 DTC will notify the CUSIP Service Bureau periodically of the CUSIP numbers that the Trustee has assigned to the Global Notes. The Trustee will notify the Company at any time when fewer than 100 of the reserved CUSIP numbers remain unassigned to the Global Notes, and, if it deems necessary, the Company will reserve and obtain additional CUSIP numbers for assignment to the Global Notes. Upon obtaining such additional CUSIP numbers, the Company will deliver a list of such additional numbers to the Trustee and DTC. Registration: Unless otherwise specified by DTC, each Global Note will be registered in the name of Cede & Co., as nominee for DTC, on the register maintained by the Trustee under the Indentures. The beneficial owner of a Global Note (or one or more indirect participants in DTC designated by such owner) will designate one or more participants in DTC (with respect to such Note, the "DTC participants") to act as agent for such beneficial owner in connection with the book-entry system maintained by DTC, and DTC will record in book-entry form, in accordance with instructions provided by such DTC participants, a credit balance with respect to such Global Note in the account of such DTC participants. The ownership interest of such beneficial owner in such Global Note will be recorded through the records of such DTC participants or through the separate records of such DTC participants and one or more indirect participants in DTC. Transfers: Transfers of beneficial ownership interests in a Global Note will be accomplished by book entries made by DTC and, in turn, by DTC participants (and in certain cases, one or more indirect participants in DTC) acting on behalf of beneficial transferors and transferees of such Global Note. Exchanges: The Trustee may deliver to DTC and the CUSIP Service Bureau at any time a written notice specifying (a) the CUSIP numbers of two or more Global Notes outstanding on such date that represent Global Notes having the same Fixed Rate Terms, Floating Rate Terms or Remarketed Terms, as the case may be (other than Original Issue Dates), and for which interest has been paid to the same date; (b) a date, occurring at least 30 days after such written notice is delivered and at least 30 days before the next Interest Payment Date for the related Notes issued in book-entry form, on which such Global Notes shall be exchanged for a single replacement 9 42 Global Note; and (c) a new CUSIP number, obtained from the Company, to be assigned to such replacement Global Note. Upon receipt of such a notice, DTC will send to its Participants (including the Trustee) a written reorganization notice to the effect that such exchange will occur on such date. Prior to the specified exchange date, the Trustee will deliver to the CUSIP Service Bureau written notice setting forth such exchange date and the new CUSIP number and stating that, as of such exchange date, the CUSIP numbers of the Global Notes to be exchanged will no longer be valid. On the specified exchange date, the Trustee will exchange such Global Notes for a single Global Note bearing the new CUSIP number and the CUSIP numbers of the exchanged Notes will, in accordance with CUSIP Service Bureau procedures, be canceled and not immediately reassigned. Notwithstanding the foregoing, if the Global Notes to be exchanged exceed $200,000,000 (or the equivalent thereof in one or more foreign or composite currencies) in aggregate principal amount, one replacement Note will be authenticated and issued to represent each $200,000,000 (or the equivalent thereof in one or more foreign or composite currencies) in aggregate principal amount of the exchanged Global Notes and an additional Global Note or Notes will be authenticated and issued to represent any remaining principal amount of such Global Notes. (See "Denominations" below). Denominations: Global Notes will not be denominated in excess of $200,000,000 aggregate principal amount. If one or more Notes are issued in book-entry form in excess of $200,000,000 aggregate principal amount and would, but for the preceding sentence, be represented by a single Global Note, then one Global Note will be issued to represent each $200,000,000 in aggregate principal amount of such Notes issued in book-entry form and an additional Global Note or Notes will be issued to represent any remaining aggregate principal amount of such Note or Notes issued in book-entry form. In such a case each of the Global Notes representing Notes issued in book-entry form shall be assigned the same CUSIP number. Settlement Procedures: Settlement Procedures with regard to each Note in book-entry form purchased by an Agent, as principal, or sold by an Agent, as agent of the Company, will be as follows: 10 43 A. The Offering Agent will advise the Company by telephone, confirmed by facsimile or appropriate electronic media, of the following Settlement information: 1. Principal amount of the Note. 2. (a) For Fixed Rate Notes: (i) Interest Rate. (ii) Interest Payment Dates. (iii) Whether such Note is being issued with Original Issue Discount and, if so, the terms thereof. (b) For Floating Rate Notes: (i) Interest Category. (ii) Interest Rate Basis or Bases. (iii) Initial Interest Rate. (iv) Spread and/or Spread Multiplier, if any. (v) Initial Interest Reset Date or Interest Reset Date. (vi) Interest Payment Dates. (vii) Index Maturity, if any. (viii) Maximum and/or Minimum Interest Rates, if any. (ix) Day Count Convention. (x) Calculation Agent. (c) For Remarketed Notes: 11 44 (i) Initial Interest Rate. (ii) Initial Interest Rate Period. (iii) First Interest Rate Adjustment Date. (iv) Interest Payment Date(s) and Record Dates in respect of the Initial Interest Rate Period. (v) Redemption or Repayment provisions, if any, applicable to the Initial Interest Rate Period and the name of the Remarketing Agent, if any. 3. Price to public, if any, of such Note (or whether such Note is being offered at varying prices relating to prevailing market prices at time of resale as determined by the Offering Agent). 4. Trade Date. 5. Settlement Date (Original Issue Date). 6. Stated Maturity Date. 7. Net proceeds to the Company. 8. The Offering Agent's commission or underwriting discount. 9. Whether such Note is being sold to the Offering Agent as principal or to an investor or other purchaser through the Offering Agent acting as agent for the Company. 10. Identification number of DTC participant account maintained on behalf of the Offering Agent. 11. Redemption provisions, if any. 12 45 12. Repayment provisions, if any. 13. Default Rate, if any. 14. Such other information specified with respect to such Note. B. The Trustee will assign a CUSIP number to the Global Note representing such Note (which CUSIP number assigned to each Note shall consist of the base issuer number and three additional positions to form a CUSIP number unique to that issuance) after being advised by the Company by facsimile transmission or other electronic transmission of the above settlement information received from the Offering Agent and the name of the Offering Agent. C. The Trustee will communicate to DTC and the Offering Agent through DTC's Participant Terminal System same-day settlement issuance instructions specifying the following settlement information: 1. The information set forth in Settlement Procedure A. 2. Identification numbers of the participant accounts maintained by DTC on behalf of the Trustee and the Offering Agent. 3. Identification of the Note as a Fixed Rate Note, Floating Rate Note or a Remarketed Note. 4. Initial Interest Payment Date for such Note, number of days by which such date succeeds the related record date for DTC purposes and, if then calculable, the amount of interest payable on such Interest Payment Date. 5. CUSIP number of the Note. 6. Such other information as DTC may require in accordance with its procedures as in effect from time to time in order to enter an SDFS deliver order through DTC's Participant 13 46 Terminal System (i) debiting such Note to the Trustee's participant account and crediting such Note to the participant account of the Offering Agent maintained by DTC and (ii) debiting the settlement account of the Offering Agent and crediting the settlement account of the Trustee maintained by DTC, in an amount equal to the price of such Note less the Offering Agent's discount or underwriting commission, as applicable. DTC will arrange for each pending deposit message described above to be transmitted to the CUSIP Service Bureau (in the case of any Remarketed Note, provided that the Initial Interest Rate Period is more than 270 days). D. The Trustee will complete Annex A to the Global Note and authenticate the book-entry note representing the Note. E. DTC will credit such Note to the participant account of the Trustee maintained by DTC. F. The Trustee will enter the SDFS deliver order to (i) debit the Note to the Trustee's participant account and credit such Note to the participant account of the Offering Agent and (ii) debit the settlement account of the Offering Agent and credit the settlement account of the Trustee. Any entry of such a deliver order shall be deemed to constitute a representation and warranty by the Trustee to DTC that (i) the Global Note representing such Note has been issued and authenticated and (ii) the Trustee is holding such Global Note pursuant to the Certificate Agreement. G. In the case of Notes sold through the Offering Agent, as agent, the Offering Agent will enter an SDFS deliver order through DTC's Participant Terminal System instructing DTC (i) to debit such Note to the Offering Agent's participant account and credit such Note to the participant account of the DTC participants maintained by DTC, (ii) to debit the settlement accounts of such DTC participants and credit the settlement account of the Offering Agent 14 47 maintained by DTC in an amount equal to the initial public offering price of such Note. In any case, the Offering Agent, acting as agent or as principal, will enter an SDFS deliver order instructing DTC to debit the settlement account of the Offering Agent and credit the settlement account of the Trustee in such amount less the Offering Agent's discount or commission. H. Transfers of funds in accordance with SDFS deliver orders described in Settlement Procedures F and G will be settled in accordance with SDFS operating procedures in effect on the Settlement Date. I. Upon receipt, the Trustee will pay the Company, by wire transfer of immediately available funds to an account specified by the Company to the Trustee from time to time, in the amount transferred to the Trustee in accordance with Settlement Procedure F. J. The Trustee will send a copy of the book-entry note representing the Note by first class mail to the Company together with a statement setting forth the principal amount of Notes Outstanding as of the related Settlement Date after giving effect to such transaction and all other offers to purchase Notes of which the Company has advised the Trustee but which have not yet been settled. K. If the Note was sold through the Offering Agent, as agent, the Offering Agent will confirm the purchase of such Note to the investor or other purchaser either by transmitting to the DTC participant with respect to such Note a confirmation order through DTC's Participant Terminal System or by mailing a written confirmation to such investor or other purchaser. Settlement Procedures Timetable: For offers to purchase Notes accepted by the Company, Settlement Procedures "A" through "K" set forth above shall be completed as soon as possible but not later than the respective times (New York City time) set forth below: Settlement Procedures For offers to purchase Notes accepted by the Timetable: Company, Settlement Procedures "A" through "K" set forth above shall be completed as soon as possible but not later than the respective times (New York City time) set forth below: 15 48
SETTLEMENT PROCEDURE TIME -------------- A. 11:00 a.m. on the trade date or within one hour following the trade B. 12:00 noon on the trade date or within one hour following the trade C. No later than the close of business on the Business Day prior to the trade date, in the case of pending instructions, and otherwise between 8:00 a.m. and 1:30 p.m. on the Settlement Date D. 9:00 a.m. on Settlement Date E. 3:00 p.m. on Settlement Date F. 3:00 p.m. on Settlement Date G. 3:00 p.m. on Settlement Date H. 4:00 p.m. on Settlement Date I.-K. 5:00 p.m. on Settlement Date
Settlement Procedure H is subject to extension in accordance with any extension of Fedwire closing deadlines and in the other events specified in the SDFS operating procedures in effect on the Settlement Date. If settlement of a Note is rescheduled or canceled, the Trustee will deliver to DTC, through DTC's Participant Terminal System, a cancellation message to such effect by no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the scheduled Settlement Date. Failure to Settle: If the Trustee fails to enter an SDFS deliver order with respect to a Note pursuant to Settlement Procedure F, the Trustee may deliver to DTC, through DTC's Participant Terminal System, as soon as practicable a withdrawal message instructing DTC to debit such Note to the participant account of the Trustee maintained at DTC. DTC will process the withdrawal message, provided that such participant account contains a principal amount of the Notes that is at least equal to the principal amount to be debited. If withdrawal messages are processed with respect to all the Notes evidenced by a Global 16 49 Note, the Trustee will mark such Global Note "canceled", make appropriate entries in its records and send certificate of destruction of such canceled Global Note to the Company. The CUSIP number assigned to such Global Note shall, in accordance with CUSIP Service Bureau procedures, be canceled and not immediately reassigned. If withdrawal messages are processed with respect to a portion of the Notes represented by a single Global Note, the Trustee will exchange such Global Note for two Notes, one of which shall represent the Notes for which withdrawal messages are processed and shall be canceled immediately after issuance, and the other of which shall represent the other Notes previously represented by the surrendered Global Note and shall bear the CUSIP number of the surrendered Global Note. In the case of any Note sold through the Offering Agent, as agent, if the purchase price for any Note is not timely paid to the DTC participants with respect to such Note by the beneficial investor or other purchaser thereof (or a person, including an indirect participant in DTC, acting on behalf of such investor or other purchaser), such DTC participants and, in turn, the related Offering Agent may enter SDFS deliver orders through DTC's Participant Terminal System reversing the orders entered pursuant to Settlement Procedures F and G, respectively. Thereafter, the Trustee will deliver the withdrawal message and take the related actions described in the preceding paragraph. If such failure shall have occurred for any reason other than default by the applicable Offering Agent to perform its obligations hereunder or under the Distribution Agreement, the Company will reimburse such Offering Agent on an equitable basis for its reasonable loss of the use of funds during the period when the funds were credited to the account of the Company. Notwithstanding the foregoing, upon any failure to settle with respect to a Note, DTC may take any actions in accordance with its SDFS operating procedures then in effect. In the event of a failure to settle with respect to a Note that was to have been represented by a Global Note also representing other Notes, the Trustee will provide, in accordance with Settlement Procedure D, for the authentication and issuance of a Global Note representing such remaining Notes and will make appropriate entries in its records. 17 50 PART III: PROCEDURES FOR CERTIFICATED NOTES Settlement Procedures: Settlement Procedures with regard to each Certificated Note purchased by the Offering Agent, as principal, or through the Offering Agent, as agent, shall be as follows: A. The Offering Agent will advise the Company by telephone of the following Settlement information with regard to each Certificated Note: 1. Exact name in which the Certificated Note(s) is to be registered (the "Registered Owner"). 2. Exact address or addresses of the Registered Owner for delivery, notices and payments of principal, premium, if any, and interest. 3. Taxpayer identification number of the Registered Owner. 4. Principal amount. 5. (a) Fixed Rate Notes: (i) Interest Rate. (ii) Interest Payment Dates. (iii) Whether such Note is being issued with Original Issue Discount and, if so, the terms thereof. (b) Floating Rate Notes: (i) Interest Category. (ii) Interest Rate Basis or Bases. (iii) Initial Interest Rate. (iv) Spread and/or Spread Multiplier, if any. 18 51 (v) Initial Interest Reset Date and Interest Reset Dates. (vi) Interest Payment Dates. (vii) Index Maturity, if any. (viii) Maximum and/or Minimum Interest Rates, if any. (ix) Day Count Convention. (x) Calculation Agent. 6. Price to public of such Certificated Note (or whether such Note is being offered at varying prices relating to prevailing market prices at time of resale as determined by the Offering Agent). 7. Trade Date. 8. Settlement Date (Original Issue Date). 9. Stated Maturity Date. 10. Redemption provisions, if any. 11. Repayment provisions, if any. 12. Default Rate, if any. 13. Net proceeds to the Company. 14. The Offering Agent's discount or commission. 15. Whether such Note is being sold to the Offering Agent as principal or to an investor or other purchaser through the Offering Agent acting as agent for the Company. 16. Such other information specified with respect to such Note (whether by Addendum or otherwise). B. After receiving such settlement information from the Offering Agent, the Company will advise the Trustee of 19 52 the above settlement information by facsimile transmission confirmed by telephone. The Company will cause the Trustee to issue, authenticate and deliver the Certificated Note. C. The Trustee will complete the Certificated Note in the form approved by the Company and the Offering Agent, and will make three copies thereof (herein called "Stub 1", "Stub 2" and "Stub 3"): 1. Certificated Note with the Offering Agent's confirmation, if traded on a principal basis, or the Offering Agent's customer confirmation, if traded on an agency basis. 2. Stub 1 for Trustee. 3. Stub 2 for Offering Agent. 4. Stub 3 for the Company. D. With respect to each trade, the Trustee will deliver the Certificated Note and Stub 2 thereof to the Offering Agent at the following applicable address: if to First Chicago Capital Markets, Inc., to: One First National Plaza, Suite 0463, Chicago, Illinois 60670, Attention: Evonne W. Taylor, telecopier: (312) 732-4172; if to Credit Suisse First Boston Corporation, to: 11 Madison Avenue, New York, New York 10010, Attention: Helena Willner, telecopier: (212) 325-8183; if to Morgan Stanley Dean Witter, to: 1585 Broadway, New York, New York 10036, Attention: Harold Hendershot III, telecopier: (212) 761-0783; if to NationsBanc Montgomery Securities LLC, to: Capital Market Services, 100 North Tyron Street, NC1-007-07-01, Charlotte, North Carolina 28255, Attention: Jennifer Arens, telecopier: (704) 388-9939; if to Warburg Dillon Read LLC, to: 535 Madison Avenue, New York, New York 10022, Attention: Peter Foote, telecopier: (203) 719-7139, and the Trustee will keep Stub 1. The Offering Agent will acknowledge receipt of the Certificated Note through a broker's receipt and will keep Stub 2. Delivery of the Certificated Note will be made only against such acknowledgment of receipt. Upon determination that the Certificated Note has been 20 53 authorized, delivered and completed as aforementioned, the Offering Agent will wire the net proceeds of the Certificated Note after deduction of its applicable commission to the Company pursuant to standard wire instructions given by the Company. E. In the case of a Certificated Note sold through the Offering Agent, as agent, the Offering Agent will deliver such Certificated Note (with the confirmation) to the purchaser against payment in immediately available funds. F. The Trustee will send Stub 3 to the Company. Settlement Procedures For offers to purchase Certificated Notes Timetable: accepted by the Company, Settlement Procedures A through F set forth above shall be completed as soon as possible following the trade but not later than the respective times (New York City time) set forth below:
Settlement Procedure Time ---------- ---- A 11:00 a.m. on the trade date or within one hour following the trade B 12:00 noon on the trade date or within one hour following the trade C 2:15 p.m. on Settlement Date D 2:15 p.m. on Settlement Date E 3:00 p.m. on Settlement Date F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold through the Offering Agent, as agent, if an investor or other purchaser of a Certificated Note from the Company shall either fail to accept delivery of or make payment for such Certificated Note on the date fixed for settlement, the Offering Agent will forthwith notify the Trustee and the Company by telephone, confirmed in writing, and return such Certificated Note to the Trustee. 21 54 The Trustee, upon receipt of such Certificated Note from the Offering Agent, will immediately advise the Company and the Company will promptly arrange to credit the account of the Offering Agent in an amount of immediately available funds equal to the amount previously paid to the Company by such Offering Agent in settlement for such Certificated Note. Such credits will be made on the Settlement Date if possible, and in any event not later than the Business Day following the Settlement Date; provided that the Company has received notice on the same day. If such failure shall have occurred for any reason other than failure by such Offering Agent to perform its obligations hereunder or under the Distribution Agreement, the Company will reimburse such Offering Agent on an equitable basis for its reasonable loss of the use of funds during the period when the funds were credited to the account of the Company. Immediately upon receipt of the Certificated Note in respect of which the failure occurred, the Trustee will cancel and destroy such Certificated Note, make appropriate entries in its records to reflect the fact that such Certificated Note was never issued, and accordingly notify in writing the Company. 22 55 PART IV: PROCEDURES FOR REMARKETING OF REMARKETED NOTES Conversions: As long as the Remarketed Notes are in the Short Term Rate Mode or the Long Term Rate Mode, the Company may change the Interest Rate Mode or Interest Rate Period at its option in the manner described in the Remarketed Notes. Any Conversion Notice or Floating Interest Rate Notice must be received by the Trustee and the Remarketing Agent from the Company in the manner and within the time period prescribed in the Remarketed Notes. With respect to proposed conversions into a Long Term Rate Period, notice of revocation or change by the Company must be received by the Trustee and the Remarketing Agent prior to 4:00 p.m., New York City time, on the third Business Day preceding the Interest Rate Adjustment Date. With respect to proposed conversions into a Short Term Rate Period, notice of revocation or change by the Company must be received by the Trustee and the Remarketing Agent prior to 9:30 a.m., New York City time, on the Interest Rate Adjustment Date. Remarketing Procedures: The Trustee will keep a record of the Remarketing Agent with respect to each Remarketed Note. Unless the context otherwise requires, references herein to "interest rate" include the Spread (if any) and Spread Multiplier (if any), in the case of Remarketed Notes being remarketed at a floating interest rate. In connection with any Remarketed Note that is being remarketed into a Short Term Rate Period on the next Interest Rate Adjustment Date for such Remarketed Note, by 12:00 p.m., New York City time, on such Interest Rate Adjustment Date, the applicable Remarketing Agent will determine the interest rate for such Remarketed Note to the nearest one thousandth (0.001) of one percent per annum for the next Interest Rate Period; provided that, in the event that the Remarketing Agent is unable to remarket such Note by 11:00 a.m., New York City time, it shall so notify the Company and, between 11:00 a.m., New York City time, and 12:00 p.m., New York City time, the Remarketing Agent shall use its reasonable efforts to determine the interest rate for any Remarketed Notes not successfully remarketed as of 11:00 a.m., New York City time. 23 56 In connection with any Remarketed Note that is being remarketed into a Long Term Rate Period on the next Interest Rate Adjustment Date for such Remarketed Note, by 4:00 p.m., New York City time, on the third Business Day preceding such Interest Rate Adjustment Date, the Remarketing Agent will determine the interest rate for such Remarketed Note to the nearest one thousandth (0.001) of one percent per annum for the next Interest Rate Period, in the case of a fixed interest rate, and the Spread, if any, or Spread Multiplier, if any, in the case of a floating interest rate; provided that, if for any reason the Remarketing Agent is unable to determine such interest rate at such time, the next Interest Rate Period for such Remarketed Note shall be a Weekly Rate Period or such other Short Term Rate Period as the Company may determine by 9:30 a.m., New York City time, on such Interest Rate Adjustment Date. By 12:30 p.m., New York City time, on the Interest Rate Adjustment Date for any Remarketed Note, the applicable Remarketing Agent will notify the Company and the Trustee in writing (which may include facsimile or appropriate electronic media), of (i) the interest rate or, in the case of a floating interest rate, as applicable, the initial interest rate and the initial Interest Reset Date, the Spread and Spread Multiplier, and in each case the Interest Rate Adjustment Date applicable to such Remarketed Note and all other Remarketed Notes for which such Remarketing Agent is responsible for remarketing for the next Interest Rate Period, (ii) the Interest Payment Dates (in the case of Notes in the Long Term Rate Mode), (iii) the aggregate principal amount of all tendered Notes for which such Remarketing Agent is responsible on such date, (iv) the aggregate principal amount of tendered Notes that such Remarketing Agent was able to remarket, at a price equal to 100% of the principal amount thereof and (v) such other information as is contemplated by Section 4(e) of the Remarketing Agreement and also such information as the Trustee may require for settlement purposes. With respect to a remarketing into a Long Term Rate Period, if by 4:00 p.m., New York City time, on the third Business Day preceding the Interest Rate Adjustment Date the Remarketing Agent is unable to determine the interest rate for any Remarketed Note subject to such remarketing at such time, the next Interest Rate Period for such Remarketed Note shall be a Weekly Rate Period or such other Short Term Rate 24 57 Period as the Company may determine by 9:30 a.m., New York City time, on the Interest Rate Adjustment Date. By telephone or in writing (including facsimile or appropriate electronic media) not later than approximately 1:00 p.m., New York City time, on such Interest Rate Adjustment Date, the applicable Remarketing Agent will advise each purchaser of Remarketed Notes remarketed on such date (or the DTC Participant of each such purchaser who it is expected in turn will advise such purchaser) of the principal amount of Remarketed Notes that such purchaser is to purchase. The applicable Remarketing Agent shall supply to any Beneficial Owner upon request information regarding the interest rate, and, in the case of a floating interest rate, Base Rate, Spread, if any, and Spread Multiplier, if any, Interest Rate Period and next Interest Rate Adjustment Date and other terms applicable to such Beneficial Owner's Remarketed Notes. Settlement Procedures for Remarketing Settlement Procedures for each Remarketings: Remarketed Note will be as follows: A. All tendered Remarketed Notes will be automatically delivered to the account of the Trustee by book entry through DTC pending payment of the purchase price or redemption price therefor, on the Interest Rate Adjustment Date relating thereto. B. By 12:30 p.m., New York City time, on the Interest Rate Adjustment Date for the Remarketed Note, the applicable Remarketing Agent will notify the Company and the Trustee in writing (which may include facsimile or appropriate electronic media), of (i) the interest rate or, in the case of a floating interest rate, as applicable, the initial interest rate and the initial Interest Reset Date, the Spread and Spread Multiplier, and in each case the Interest Rate Adjustment Date applicable to such Remarketed Note and all other Remarketed Notes for which such Remarketing Agent is responsible for remarketing for the next Interest Rate Period, (ii) the Interest Payment Dates (in the case of Notes in the Long Term Rate Mode), (iii) the aggregate principal amount of all tendered Notes for which such Remarketing Agent is responsible on the date, (iv) the aggregate 25 58 principal amount of tendered Remarketed Notes that such Remarketing Agent was able to remarket, at a price equal to 100% of the principal amount thereof and (v) such other information as is contemplated by Section 4(e) of the Remarketing Agreement and also such information as the Trustee may require for settlement purposes. C. Immediately after receiving notice from the Remarketing Agent as provided in B above, and not later than 1:30 p.m., New York City time, the Trustee will assign a CUSIP number to the Remarketed Note (which CUSIP number assigned to each Remarketed Note shall consist of the base issuer number and three additional positions to form a CUSIP number unique to that remarketing) after being notified by the Remarketing Agent as provided in Remarketing Settlement Procedure B above and notify the Remarketing Agent in writing. D. Immediately after assigning the CUSIP number as provided in C above and not later than 1:30 p.m., New York City time, the Trustee will communicate to DTC and the Remarketing Agent through DTC's Participant Terminal System same-day settlement issuance instructions specifying the following settlement information: 1. The information set forth in the Remarketing Settlement Procedure B(i) and the principal amount of the Remarketed Note. 2. Identification numbers of the participant accounts maintained by DTC on behalf of the Remarketing Agent and the Trustee. 3. Next Interest Payment Date for such Remarketed Note, number of days by which such date succeeds the related record date for DTC purposes and, if then calculable, the amount of interest payable on such Interest Payment Date. 4. CUSIP number of the Remarketed Note. 26 59 5. Such other information as DTC may require in accordance with its procedures as in effect from time to time in order to enter SDFS deliver orders through DTC's Participant Terminal System (i) debiting such Note to the Trustee's participant account and crediting such Remarketed Note to the participant account of the Remarketing Agent (for crediting to the account of the purchaser) maintained by DTC, (ii) debiting the settlement account of the Remarketing Agent's participant and crediting the settlement account of the Trustee and (iii) debiting the settlement account of the Trustee and crediting the settlement account of the Beneficial Owner maintained by DTC, in an amount equal to 100% of the principal amount of such Remarketed Note. E. The Trustee will make the appropriate computer entries of the Remarketed Note to reflect the results of the remarketing of such Remarketed Note. The Trustee will preserve for record-keeping purposes copies of the information provided by the Remarketing Agent as described above or by the Company in any Conversion Notice or Floating Interest Rate Notice and make such copies available to the Company and the Remarketing Agent upon request. F. Each purchaser of Remarketed Notes in a remarketing must give instructions to its DTC Participant to pay the purchase price therefor in same day funds to the applicable Remarketing Agent (or to the Trustee) against delivery of the principal amount of such Remarketed Notes by book entry through DTC by 3:00 p.m., New York City time, on the Interest Adjustment Date. The Remarketing Agent will make or use its reasonable efforts to cause to be made payment of such amount to the Trustee by book-entry through DTC to facilitate settlement as described in G below. G. The Trustee will make payment by book-entry settlement with DTC to enable DTC to make payment to the DTC Participant of each tendering Beneficial Owner of Remarketed Notes subject to a remarketing, by book entry through DTC by the close of business on the Interest Rate Adjustment Date against delivery 27 60 through DTC of such Beneficial Owner's tendered Remarketed Notes, of: (i) the purchase price for such tendered Notes that have been sold in the remarketing, and (ii) if any such Notes were subject to purchase as described under "Failed Remarketings" below, the purchase price of such Remarketed Notes plus accrued interest, if any, to such date. Interest payable on any Remarketed Note on any Interest Rate Adjustment Date will be paid in accordance with the procedures set forth in Part V below. The Remarketing Agents may, in accordance with the Remarketed Notes, modify the settlement and remarketing procedures set forth above in order to facilitate the settlement and remarketing process. Not later than the Business Day following the Interest Rate Adjustment Date, the Trustee shall confirm to DTC the interest rate for the following Interest Rate Period. Failed Remarketings: By 12:15 p.m., New York City time, on any Interest Rate Adjustment Date, the applicable Remarketing Agent shall notify the Company and the Trustee in writing (which includes facsimile or appropriate electronic media), of the principal amount of Remarketed Notes that such Remarketing Agent was unable to remarket at a price equal to 100% of the principal amount thereof plus accrued interest, if any, on such date. Such notice will constitute a demand on the Company to purchase such unremarketed Remarketed Notes at an aggregate purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any. The Company will deposit same-day funds with the Trustee by 3:00 p.m., New York City time, on such Interest Rate Adjustment Date, in an amount equal to the principal amount of such unremarketed Remarketed Notes plus accrued and unpaid interest, if any. 28 61 PART V: PRINCIPAL AND INTEREST PAYMENTS Principal: Principal of each Note will be repayable by the Company only at the Stated Maturity thereof or upon earlier repayment at the option of the holders thereof (if applicable), upon earlier redemption at the option of the Company or upon Special Mandatory Purchase, in each case in accordance with the terms of the Notes. Interest: Each Note will bear interest in accordance with its terms. Unless otherwise provided in the applicable Pricing Supplement, interest on each Note will accrue from and including the Original Issue Date of such Note for the first interest period or from the most recent Interest Payment Date (as defined below) to which interest has been paid or duly provided for all subsequent interest periods to, but excluding, the applicable Interest Payment Date, the Stated Maturity Date or, in the case of Remarketed Notes, the Interest Rate Adjustment Date, or the date of earlier redemption or repayment, as the case may be (the Stated Maturity Date or date of earlier redemption or repayment is referred to herein as the "Maturity Date" with respect to the principal repayable on such date). Each Remarketed Note initially will earn interest at the Initial Interest Rate for the Initial Interest Rate Period specified in the applicable Pricing Supplement. Thereafter, while a Remarketed Note is in the Short Term Rate Mode, it will earn interest during each Short Term Rate Period at fixed rates established by the applicable Remarketing Agent on the first day of such Short Term Rate Period. While a Remarketed Note is in the Long Term Rate Mode, it will earn interest during each Long Term Rate Period at fixed rates established prior to the commencement of such Long Term Rate Period and/or rates established on the first day of such Long Term Rate Period and reset at intervals established by the applicable Remarketing Agent with the consent of the Company prior to the commencement of such Long Term Rate Period by reference to an Interest Rate Basis established by the Company prior to the commencement of such Long Term Rate Period as adjusted by a Spread, if any, and a Spread Multiplier, if any, established prior to the commencement of such Long Term Rate Period by the Remarketing Agent. 29 62 Except as provided below, if an Interest Payment Date or the Maturity Date with respect to any Note falls on a day that is not a Business Day, the required payment to be made on such day need not be made on such day, but may be made on the next succeeding Business Day with the same force and effect as if made on such day, and no interest shall accrue on such payment for the period from and after such day to the next succeeding Business Day. In the case of a Note bearing interest at a floating rate for which LIBOR is an applicable Interest Rate Basis, if such Business Day falls in the next succeeding calendar month, such Interest Payment Date will be the immediately preceding Business Day. If the Maturity Date with respect to any Note bearing interest at a floating rate falls on a day that is not a Business Day, the required payment to be made on such day need not be made on such day, but may be made on the next succeeding Business Day with the same force and effect as if made on such day, and no interest shall accrue on such payment for the period from and after the Maturity Date to the next succeeding Business Day. In case of Remarketed Notes, each Interest Rate Adjustment Date shall be a Business Day. "Business Day" means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York, New York or Dallas, Texas; provided, however, that, with respect to Notes as to which LIBOR is an applicable Interest Rate Basis, such day is also a London Business Day. "London Business Day" means a day on which dealings in the Designated LIBOR Currency are transacted in the London interbank market. Calculation of Interest: Unless otherwise set forth in the applicable Note, Interest (including payments for partial periods) on Fixed Rate Notes, and Remarketed Notes bearing interest at a fixed rate during a Long Term Rate Period will be calculated and paid on the basis of a 360-day year of twelve 30-day months. Interest (including payments for partial periods) on Remarketed Notes bearing interest at a fixed rate during a Short Term Rate Period will be calculated and paid on the basis of actual days elapsed over 360 (or over the actual number of days in the year if an applicable Interest Rate Basis is the CMT Rate or Treasury Rate). Floating interest rates will be calculated by reference to the specified Interest Rate Basis plus or minus the applicable 30 63 Spread, if any, and/or multiplied by the applicable Spread Multiplier, if any. Unless otherwise provided in the applicable Pricing Supplement, interest on each Floating Rate Note will be calculated by multiplying its principal amount by an accrued interest factor. Such accrued interest factor is computed by adding the interest factor calculated for each day in the period for which accrued interest is being calculated. Unless otherwise provided in the applicable Pricing Supplement, the interest factor for each such day is computed by dividing the interest rate applicable to such day by 360 if the CD Rate, Commercial Paper Rate, Eleventh District Cost of Funds Rate, Federal Funds Rate, LIBOR or Prime Rate is an applicable Interest Rate Basis, or by the actual number of days in the year if the CMT Rate or Treasury Rate is an applicable Interest Rate Basis. As provided in the applicable Pricing Supplement, the interest factor for Notes for which the interest rate is calculated with reference to two or more Interest Rate Bases will be calculated in each period in the same manner as if only the lowest, highest or average of the applicable Interest Rate Bases applied. Interest Rate Basis Applicable Unless otherwise provided in the applicable to Floating Interest Rates: Pricing Supplement, Floating Interest Rates will be determined by reference to the CD Rate, the CMT Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the Federal Funds Rate, LIBOR, the Prime Rate, the Treasury Rate, or such other interest rate basis or formula as may be set forth in the applicable Pricing Supplement or, in the case of Remarketed Notes, Floating Interest Rate Notice or by reference to two or more such rates, as adjusted by the applicable Spread and/or Spread Multiplier, if any. Unless otherwise specified in the applicable Pricing Supplement, with the consent of the applicable Remarketing Agent, a floating interest rate will apply to any Long Term Rate Period for a Remarketed Note specified by the Company upon receipt by the Trustee and the Remarketing Agent of a notice in or confirmed in writing (a "Floating Interest Rate Notice") from the Company not less than eleven (11) Business Days prior to the Interest Rate Adjustment Date for such Long Term Rate Period. Each Floating Interest Rate Notice must state each Remarketed Note to which it relates and the Long Term Rate Period to which it relates, and must 31 64 also state that the Beneficial Owners of each such Remarketed Note will be deemed to have tendered each such Remarketed Note as of the Conversion Date and will not be entitled to further accrual of interest on each such Remarketed Note after such date. Each Floating Interest Rate Notice must also state whether the floating interest rate is a "Regular Floating Rate," a "Floating Rate/Fixed Rate" or an "Inverse Floating Rate," the Fixed Rate Commencement Date, if applicable, the Fixed Interest Rate, if applicable, the Interest Rate Basis, the Initial Interest Rate, if any, the Initial Interest Reset Date, the Interest Reset Period and Dates, the Interest Payment Period and Dates, the Index Maturity and the Maximum Interest Rate and/or the Minimum Interest Rate, if any. If one or more of the applicable Interest Rate Basis is LIBOR or the CMT Rate, the Floating Interest Rate Notice will also specify the Index Currency and Designated LIBOR Page or the Designated CMT Maturity Index and Designated CMT Telerate Page, respectively. Redemption: The Notes will be subject to redemption by the Company in accordance with the terms of the Notes. Terms of redemption, if any, during the Initial Interest Rate Period for any Remarketed Note will be fixed at the time of sale of such Remarketed Note and set forth in the applicable Pricing Supplement. Repayment: The Notes will be subject to repayment by the Company at the option of the holders thereof in accordance with the terms of the Notes. In the case of Remarketed Notes, terms of repayment, if any, during the Initial Interest Rate Period for any Note will be fixed at the time of sale of such Remarketed Note and set forth in the applicable Pricing Supplement. Record Dates: Unless otherwise provided in the applicable Pricing Supplement, the "Regular Record Date" for a Fixed Rate Note or Floating Rate Note shall be the date 15 calendar days (whether or not a Business Day) preceding the applicable Interest Payment Date. In the case of Remarketed Notes, for the Initial Interest Rate Period, the Record Dates will be specified in the applicable Pricing Supplement or, if not so specified, the Business Day next preceding the related Interest Payment Date. Thereafter, 32 65 unless otherwise specified in the applicable Pricing Supplement, the Record Date for each Interest Payment Date will be (y) in the case of each Short Term Rate Period, the Business Day next preceding such Interest Payment Date, and (z) in the case of each Long Term Rate Period, the 15th day (whether or not a Business Day) prior to such Interest Payment Date. Interest Payment Dates: Interest payments will be made on each Interest Payment Date commencing with the first Interest Payment Date following the Original Issue Date. Unless otherwise provided in the applicable Pricing Supplement, interest payments on Fixed Rate Notes will be made semiannually in arrears on March 1 and September 1 of each year and on the Maturity Date, while interest payments on Floating Rate Notes will be made as specified in the applicable Pricing Supplement. Interest on each Remarketed Note during the Initial Interest Rate Period will be payable on the Interest Payment Date or Dates specified in the applicable Pricing Supplement. Thereafter, unless otherwise specified in the applicable Pricing Supplement, the Interest Payment Dates for such Remarketed Note will be determined as follows: (i) interest with respect to each Short Term Rate Period will be payable on the Business Day next following such Short Term Rate Period; and (ii) interest with respect to each Long Term Rate Period will be payable no less than semiannually on such dates as are established by the Company and the Remarketing Agent prior to the commencement of each Long Term Rate Period in the case of a fixed interest rate, and as specified in the applicable Floating Interest Rate Notice in the case of a floating interest rate. Payments of Principal, Payments of Interest Only. Promptly after each Premium, if any, and Interest Regular Record Date, the Trustee will deliver on Book-Entry Notes (other to the Company a written notice specifying by than Special Mandatory CUSIP number the amount of interest to be paid Purchase of a Remarketed on each Book-Entry Note on the following Note): Interest Payment Date (other than an Interest Payment Date coinciding with the Maturity Date) and the total of such amounts. The Trustee and DTC will confirm the amount payable on each Book-Entry Note on such Interest Payment Date in accordance with DTC's procedures as in effect from time to time. On or before such Interest Payment Date, the 33 66 Company will pay to the Trustee in immediately available funds an amount sufficient to pay the interest then due and owing on the Book-Entry Notes, and upon receipt of such funds from the Company, the Trustee in turn will pay to DTC such total amount of interest due on such Book-Entry Notes (other than on the Maturity Date) at the times and in the manner set forth below under "Manner of Payment". Payments at Maturity. Not less than 15 days nor more than 60 days prior to the Maturity Date of any Book-Entry Note (subject to the Trustee having received prior notice of redemption, if applicable), the Trustee will deliver to the Company a written list of principal, premium, if any, and interest to be paid on each such Book-Entry Note. The Trustee and the Company will confirm the amounts of such principal, premium, if any, and interest payments with respect to each such Book-Entry Note on or about the fifth Business Day preceding the Maturity Date of such Book-Entry Note. The Trustee and DTC will confirm such amounts in accordance with DTC's procedures as in effect from time to time. On or before the Maturity Date, the Company will pay to the Trustee in immediately available funds an amount sufficient to make the required payments, and upon receipt of such funds the Trustee in turn will pay to DTC the principal amount of Book-Entry Notes, together with premium, if any, and interest due on the Maturity Date, at the times and in the manner set forth below under "Manner of Payment". Promptly after payment to DTC of the principal, premium, if any, and interest due on the Maturity Date of such Book- Entry Note, the Trustee will cancel such Book-Entry Note and deliver to the Company an appropriate debit advice. On the first Business Day of each month, the Trustee will deliver to the Company a written statement indicating the total principal amount of outstanding Book-Entry Notes as of the close of business on the immediately preceding Business Day. Manner of Payment. The total amount of any principal, premium, if any, and interest due on Book-Entry Notes on any Interest Payment Date or the Maturity Date, as the case may be, shall be paid by the Company to the Trustee in funds available for use by the Trustee no later than 10:00 a.m., New York City time, on such date. The Company will make such payment on such Book-Entry Notes to an account specified by the Trustee. Thereafter on such date, DTC will debit the account of the Trustee and pay, in accordance with its SDFS 34 67 operating procedures then in effect, such amounts in funds available for immediate use to the respective DTC participants in whose names the beneficial interests in such Book-Entry Notes are recorded in the book-entry system maintained by DTC. Neither the Company nor the Trustee shall have any responsibility or liability for the payment by DTC of the principal of, or premium, if any, or interest on, the Book-Entry Notes. Withholding Taxes. The amount of any taxes required under applicable law to be withheld from any interest payment on a Book-Entry Note will be determined and withheld by the DTC participant, indirect participant in DTC or other Person responsible for forwarding payments and materials directly to the beneficial owner of such Book-Entry Note. Payments of Principal, Upon presentment and delivery of the Premium, if any, and Interest Certificated Note, the Trustee upon receipt of on Certificated immediately available funds from the Company Notes: will pay the principal of, premium, if any, and interest on, each Certificated Note on the Maturity Date in immediately available funds. All interest payments on a Certificated Note, other than interest due on the Maturity Date, will be made by check mailed to the address of the person entitled thereto as such address shall appear in the Security Register; provided, however, that Holders of $10,000,000 or more in aggregate principal amount of Certificated Notes (whether having identical or different terms and provisions) shall be entitled to receive such interest payments by wire transfer of immediately available funds if appropriate wire transfer instructions have been received in writing by the Trustee not less than 15 calendar days prior to the applicable Interest Payment Date. The Trustee will provide monthly to the Company a list of the principal, premium, if any, and interest to be paid on Certificated Notes maturing in the next succeeding month. The Trustee will be responsible for withholding taxes on interest paid as required by applicable law. Certificated Notes presented to the Trustee on the Maturity Date for payment will be canceled by the Trustee. All canceled Certificated Notes held by the Trustee shall be destroyed, and the Trustee shall furnish to the Company a certificate with respect to such destruction. 35 68 Payments of Principal and Upon notice to the Company by a Remarketing Interest (Special Mandatory Agent of a failed remarketing of a Remarketed Purchase of a Remarketed Note on any Interest Rate Adjustment Date, as Note): described in Part II above, the Company will pay in immediately available funds by deposit to the account of the Trustee an amount sufficient to pay 100% of the principal amount of such Note subject to Special Mandatory Purchase, plus accrued and unpaid interest, if any, and upon receipt of such funds the Trustee in turn will pay to DTC, the principal amount of such Remarketed Note, together with interest, if any, due at such Interest Rate Adjustment Date, at the times and in the manner set forth below under "Manner of Payment". Promptly after payment to DTC of the principal and interest, if any, due on such Interest Rate Adjustment Date, the Company may cause the Trustee to cancel the Remarketed Note in accordance with the Indentures, subject to Section 309 thereof. Manner of Payment. The total amount of any principal and interest, if any, due on Remarketed Notes subject to Special Mandatory Purchase on any Interest Rate Adjustment Date shall be paid by the Company to the Trustee in funds available for use by the Trustee no later than 3:00 p.m., New York City time, on such date. The Company will make such payment on such Note to the account specified by the Trustee. Thereafter on such date, DTC will debit the account of the Trustee and pay, in accordance with its SDFS operating procedures then in effect, such amounts in funds available for immediate use to the respective DTC participants in whose names such Remarketed Note is recorded in the book-entry system maintained by DTC. Neither the Company, the Trustee nor the Remarketing Agent shall have any responsibility or liability for the payment by DTC of the principal of, or interest, if any, on, the Remarketed Note to such DTC participants. 36 69 SCHEDULE I
Percent of Outstanding Equity Interests Owned Subsidiary Directly or Indirectly by Centex Corporation - ---------- --------------------------------------------- ADFINET, Inc. 80.1% Advanced Financial Technology, Inc. 80.1% Advanced Protection Systems, Inc. 84.75% Cavco Industries, LLC 80.5% CAV Holdings, LLC 80.5% Centex-Aim Construction, L.L.C. 80% Centex-Rooney/HLM Correctional Design/Builders, L.C. 90% Centex-Rooney/RS&H Design Builders, L.C. 90% Centex Seismic Services, Inc. 95% Charles Church Homes Limited 50% CRG Holdings, LLC 80.5% CSL Agnews Development, LLC 33.33% Loan Processing Technologies, Inc. 80.1% Parcel E, LLC 75% Residential Contractors, Inc. 49% The Student Communities Group, L.C. 50% Wayne Homes, LLC 97% Westfest, LLC 50% Centex Construction Products, Inc. 56.4% Wholly-owned subsidiaries of Centex Construction Products, Inc.: CCP-Cement Company Mountain Cement Company Nevada Cement Company Texas Cement Company Western Cement Company of California CCP Concrete/Aggregates Company BP Sand & Gravel, Inc. Centex Materials, Inc. Mathews Readymix, Inc. Western Aggregates, Inc. CCP Gypsum Company American Gypsum Company CEGC Holding Company Centex Eagle Gypsum Company Centex Eagle Gypsum Company, L.L.C. M&W Drywall Supply Company CCP Land Company Centex Cement Corporation
EX-4.4 3 INDENTURE SUPPLEMENT NO. 4 DATED NOVEMBER 1, 1998 1 EXHIBIT 4.4 CENTEX CORPORATION Issuer and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION (Formerly Texas Commerce Bank National Association) Trustee INDENTURE SUPPLEMENT NO. 4 Dated as of November 1, 1998 to INDENTURE Dated as of March 12, 1987 Subordinated Medium-Term Notes, Series A 2 INDENTURE SUPPLEMENT NO. 4 ("Indenture Supplement"), dated as of November 1, 1998, between CENTEX CORPORATION, a Nevada corporation (together with its successors and assigns as provided in the Indenture referred to below, the "Company"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association (formerly, Texas Commerce Bank National Association) (together with its successors in trust thereunder as provided in the Indenture referred to below, the "Trustee"), as trustee under an Indenture dated as of March 12, 1987 (the "Indenture"). PRELIMINARY STATEMENT Section 2.02 of the Indenture provides, among other things, that the Company may, when authorized by its Board of Directors, and the Trustee may at any time and from time to time, enter into a series supplement to the Indenture for the purpose of authorizing one or more Series of Subordinated Debt Securities and to specify certain terms of each such Series of Subordinated Debt Securities. The Board of Directors of the Company has duly authorized the creation of a Series of Subordinated Debt Securities to be known as the Company's Subordinated Medium-Term Notes, Series A (the "Subordinated Notes"), and the Company and the Trustee are executing and delivering this Indenture Supplement in order to provide for the issuance of the Subordinated Notes. ARTICLE ONE Definitions Except to the extent such terms are otherwise defined in this Indenture Supplement or the context clearly requires otherwise, all terms used in this Indenture Supplement which are defined in the Indenture or the form of Fixed Rate Note or Floating Rate Note attached hereto as Exhibits A and B, respectively, either directly or by reference therein, shall have the meanings assigned to them therein. As used in this Indenture Supplement, the following terms shall have the following meanings: AMORTIZED FACE AMOUNT: The term "Amortized Face Amount" of an Original Issue Discount Note, as of the date that (i) the principal amount of such Subordinated Note is to be repaid prior to its Stated Maturity, whether upon declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise, or (ii) any consent, notice, request, direction, waiver or suit by the Noteholders shall be deemed to be given, made or commenced under this Indenture, shall mean the principal amount of such Subordinated Note multiplied by its Issue Price plus the portion of the difference between the dollar amount thus obtained and the principal amount of such Subordinated Note that has accreted at the Yield to maturity of such Subordinated Note (computed in accordance with generally accepted United States bond yield computation principles) to such date, but in no event shall the Amortized Face Amount of an Original Issue Discount Note exceed its principal amount stated in the applicable Company Order. AMORTIZING NOTE: The term "Amortizing Note" shall mean a Subordinated Note for which payments of principal of and interest on such Subordinated Note are made in installments over the life of such Subordinated Note, and unless otherwise specified in the applicable Company Order, payments with respect to an Amortizing Note shall be applied first to interest due and payable thereon and then to the reduction of the unpaid principal amount thereof. -1- 3 AUTHORIZED AGENT: The term "Authorized Agent" shall mean an agent of the Company designated by an Officers' Certificate to give to the Trustee the information specified in clause (a) of "Company Order" for the issuance of a Subordinated Note. BASIS POINT: The term "Basis Point" shall mean one-one hundredth of a percentage point. CD RATE: The term "CD Rate" shall mean, with respect to any CD Rate Interest Determination Date, the rate on such date for negotiable United States dollar certificates of deposit having the Index Maturity specified in the applicable Pricing Supplement as published in H.15(519) (as hereinafter defined) under the heading "CD (secondary market)" or, if not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on such CD Rate Interest Determination Date for negotiable United States dollar certificates of deposit of the Index Maturity specified in the applicable Pricing Supplement as published in H.15 Daily Update (as hereinafter defined), or such other recognized electronic source used for the purpose of displaying such rate, under the caption "CD (secondary market)." If such rate is not yet published in H.15(519), H.15 Daily Update or another recognized electronic source by 3:00 P.M., New York City time, on the related Calculation Date, then the CD Rate on such CD Rate Interest Determination Date will be calculated by the Calculation Agent and will be the arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York City time, on such CD Rate Interest Determination Date, of three leading nonbank dealers in negotiable United States dollar certificates of deposit in The City of New York (which may include the Agents or their affiliates) selected by the Calculation Agent for negotiable United States dollar certificates of deposit of major United States money center banks for negotiable certificates of deposit with a remaining maturity closest to the Index Maturity specified in the applicable Pricing Supplement in an amount that is representative for a single transaction in that market at that time; provided, however, that if the dealers so selected by the Calculation Agent are not quoting as mentioned in this sentence, the CD Rate determined as of such CD Rate Interest Determination Date will be the CD Rate in effect on such CD Rate Interest Determination Date. CD RATE INTEREST DETERMINATION DATE: The term "CD Rate Interest Determination Date" shall mean the Interest Determination Date relating to a Floating Rate Note for which the interest rate is determined with reference to the CD Rate. CMT RATE: The term "CMT Rate" shall mean, with respect to any Interest Determination Date relating to a Floating Rate Note for which the interest rate is determined with reference to the CMT Rate, the rate displayed on the Designated CMT Telerate Page under the caption "...Treasury Constant Maturities...Federal Reserve Board Release H.15...Mondays Approximately 3:45 P.M.," under the column for the Designated CMT Maturity Index for (i) if the Designated CMT Telerate Page is 7051, the rate on such CMT Rate Interest Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the weekly or monthly average, as specified in the Company Order, for the week or the month, as applicable, ended immediately preceding the week or the month, as applicable, in which the related CMT Rate Interest Determination Date falls. If such rate is no longer displayed on the relevant page or is not so displayed by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT Rate for such CMT Rate Interest Determination -2- 4 Date will be such treasury constant maturity rate for the Designated CMT Maturity Index as published in H.15(519). If such rate is no longer published or is not so published by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT Rate on such CMT Rate Interest Determination Date will be such treasury constant maturity rate for the Designated CMT Maturity Index (or other United States Treasury rate for the Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with respect to such Interest Reset Date as may then be published by either the Board of Governors of the Federal Reserve System or the United States Department of the Treasury that the Calculation Agent determines to be comparable to the rate formerly displayed on the Designated CMT Telerate Page and published in H.15(519). If such information is not so provided by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT Rate on the CMT Rate Interest Determination Date will be calculated by the Calculation Agent and will be a yield to maturity, based on the arithmetic mean of the secondary market offered rates as of approximately 3:30 P.M., New York City time, on such CMT Rate Interest Determination Date reported, according to their written records, by three leading primary United States government securities dealers in The City of New York (which may include the Agents or their affiliates) (each, a "Reference Dealer") selected by the Calculation Agent (from five such Reference Dealers selected by the Calculation Agent and eliminating the highest quotation (or, in the event of equality, one of the highest) and the lowest quotation (or, in the event of equality, one of the lowest)), for the most recently issued direct noncallable fixed rate obligations of the United States ("Treasury Notes") with an original maturity of approximately the Designated CMT Maturity Index and a remaining term to maturity of not less than such Designated CMT Maturity Index minus one year. If the Calculation Agent is unable to obtain three such Treasury Note quotations, the CMT Rate on such CMT Rate Interest Determination Date will be calculated by the Calculation Agent and will be a yield to maturity based on the arithmetic mean of the secondary market offered rates as of approximately 3:30 P.M., New York City time, on such CMT Rate Interest Determination Date of three Reference Dealers in The City of New York (from five such Reference Dealers selected by the Calculation Agent and eliminating the highest quotation (or, in the event of equality, one of the highest) and the lowest quotation (or, in the event of equality, one of the lowest)), for Treasury Notes with an original maturity of the number of years that is the next highest to the Designated CMT Maturity Index and a remaining term to maturity closest to the Designated CMT Maturity Index and in an amount of at least $100 million. If three or four (and not five) of such Reference Dealers are quoting as described above, then the CMT Rate will be based on the arithmetic mean of the offered rates obtained and neither the highest nor the lowest of such quotes will be eliminated; provided, however, that if fewer than three Reference Dealers so selected by the Calculation Agent are quoting as mentioned herein, the CMT Rate determined as of such CMT Rate Interest Determination Date will be the CMT Rate in effect on such CMT Rate Interest Determination Date. If two Treasury Notes with an original maturity as described in the second preceding sentence have remaining terms to maturity equally close to the Designated CMT Maturity Index, the Calculation Agent will obtain quotations for the Treasury Note with the shorter remaining term to maturity. CMT RATE INTEREST DETERMINATION DATE: The term "CMT Rate Interest Determination Date" shall mean any Interest Determination Date relating to a Floating Rate Note for which the interest rate is determined with reference to the CMT Rate. CALCULATION AGENT: The term "Calculation Agent" for a particular Floating Rate Note shall mean the Trustee, unless otherwise specified in the applicable Company Order. -3- 5 CALCULATION DATE: The term "Calculation Date" shall, unless otherwise specified in the applicable Company Order, mean with regard to any particular Interest Determination Date, the earlier of (i) the tenth calendar day after such Interest Determination Date, or, if any such day is not a Business Day, the next day that is a Business Day, or (ii) the Business Day immediately preceding the applicable Interest Payment Date or Maturity Date, as the case may be. COMMERCIAL PAPER RATE: The term "Commercial Paper Rate" for a particular Floating Rate Note, unless otherwise indicated in the applicable Company Order, shall mean, with respect to any Interest Determination Date, the Money Market Yield on such date of the rate for commercial paper having the Index Maturity specified in such Company Order, as such rate shall be published in H.15(519) under the caption "Commercial Paper -- Nonfinancial" or, if not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on such Commercial Paper Rate Interest Determination Date for commercial paper having the Index Maturity specified in the applicable Company Order as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying such rate, under the caption "Commercial Paper-Nonfinancial." If such rate is not yet published in H.15(519), H.15 Daily Update or another recognized electronic source by 3:00 P.M., New York City time, on the related Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate Interest Determination Date will be calculated by the Calculation Agent and will be the Money Market Yield of the arithmetic mean of the offered rates at approximately 11:00 A.M., New York City time, on such Commercial Paper Rate Interest Determination Date of three leading dealers of commercial paper in The City of New York (which may include the Agents or their affiliates) selected by the Calculation Agent for commercial paper having the Index Maturity specified in the applicable Pricing Supplement placed for industrial issuers whose bond rating is "Aa," or the equivalent, from a nationally recognized statistical rating organization; provided, however, that if the dealers so selected by the Calculation Agent are not quoting as mentioned in this sentence, the Commercial Paper Rate determined as of such Commercial Paper Rate Interest Determination Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate Interest Determination Date. COMMERCIAL PAPER RATE INTEREST DETERMINATION DATE: The term "Commercial Paper Rate Interest Determination Date" shall mean any Interest Determination Date relating to a Floating Rate Note for which the interest rate is determined with reference to the Commercial Paper Rate. COMMERCIAL PAPER RATE NOTES: The term "Commercial Paper Rate Notes" shall mean Floating Rate Notes which are specified in the applicable Company Order as bearing interest at an interest rate calculated with reference to the Commercial Paper Rate. COMPANY ORDER: The term "Company Order" shall mean: (a) a written order signed in the name of the Company by the Chairman of the Board, the President or any Vice President and by the Secretary or an Assistant Secretary of the Company, and delivered -4- 6 to the Trustee, to authenticate a Subordinated Note and to make it available for delivery, and specifying for such Subordinated Note the following information: (1) the name of the Person in which a Subordinated Note to be issued and authenticated shall be registered; (2) the address of such Person; (3) the taxpayer identification number of such Person; (4) the principal amount of such Subordinated Note and, if multiple Subordinated Notes are to be issued to such Person, the denominations of such Subordinated Notes; (5) the Issue Price of such Subordinated Note; (6) the Original Issue Date of such Subordinated Note; (7) the date upon which such Subordinated Note is scheduled to mature and the Final Maturity Date; (8) if the Subordinated Note is to be redeemable at the option of the Company, the Initial Redemption Date and the date or dates on which, and the price or prices at which, such Subordinated Note is redeemable at the option of the Company; (9) if the Subordinated Note is to be repayable prior to the Stated Maturity at the option of the Holder, the date or dates on which, and the price or prices at which, such Subordinated Note is repayable at the option of the Holder; (10) if the Subordinated Note is a Fixed Rate Note, the rate of interest on such Subordinated Note and the Interest Payment Dates, if other than March 1 and September 1, and the Record Dates, if other than February 15 and August 15; (11) if the Subordinated Note is an Original Issue Discount Note, its Yield to Maturity; (12) if such Subordinated Note is an Amortizing Note, a table setting forth the schedule of dates and amounts of payments of principal of and interest on such Subordinated Note or the formula for the amortization of principal and/or interest; (13) if the Subordinated Note is a Reset Note, the Optional Interest Reset Date and the formula, if any, for resetting the interest rate of a Fixed Rate Note or the Spread and/or Spread Multiplier of a Floating Rate Note; (14) if the Subordinated Note is a Floating Rate Note, its: (A) Initial Interest Rate (I) Interest Reset Dates
-5- 7 (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 Subordinated Note is a Floating Rate Note, whether it is a Regular Floating Rate Note or a Floating Rate/Fixed Rate Note; (16) whether or not such Subordinated Note is to be issued in the form of a Global Note to the Depositary; (17) the name and address of the Calculation Agent, if other than the Trustee; (18) if other than United States dollars or denominations of $1,000 and integral multiples thereof, the authorized currency or denominations in which Subordinated Notes shall be issued; and (19) all other information necessary for the issuance of such Subordinated Note not inconsistent with the provisions of this Indenture; or (b) confirmation given to the Trustee by an officer of the Company designated by an Officers' Certificate, by telephone, confirmed by telex or facsimile or similar writing, of the information given to the Trustee by an Authorized Agent for the issuance of a Subordinated Note, and the written order of the Company to authenticate such Subordinated Note and to make it available for delivery. COMPOSITE QUOTATIONS: The term "Composite Quotations" shall mean the daily statistical release "Composite 3:30 P.M. Quotations for U. S. Government Securities" or any successor publication published by the Federal Reserve Bank of New York. CUSIP: The term "CUSIP" shall mean the registered trademark "Committee on Uniform Securities Identification Procedures" or "CUSIP" and a unique system of identification of each public issue of a security owned by the American Bankers Association and administered by Standard and Poor's Corporation, as agent of the American Bankers Association. -6- 8 DEPOSITARY: The term "Depositary" shall mean, unless otherwise specified by the Company, The Depository Trust Company, New York, New York, or any successor thereto registered as a Clearing Agency under the Securities and Exchange Act of 1934, as amended, or any successor statute or regulation. DESIGNATED CMT TELERATE PAGE: The term "Designated CMT Telerate Page" shall mean the display on Bridge Telerate, Inc. (or any successor service) on the page specified in the applicable Pricing Supplement (or any other page as may replace such page on such service) for the purpose of displaying Treasury Constant Maturities as reported in H.15(519) or, if no such page is specified in the applicable Pricing Supplement, page 7052. DESIGNATED CMT MATURITY INDEX: The term "Designated CMT Maturity Index" shall mean the original period to maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years) specified in the applicable Pricing Supplement with respect to which the CMT Rate will be calculated or, if no such maturity is specified in the applicable Pricing Supplement, 2 years. DESIGNATED LIBOR CURRENCY: The term "Designated LIBOR Currency" shall mean the currency or composite currency specified in the applicable Company Order as to which LIBOR shall be calculated or, if no such currency or composite currency is specified in the applicable Company Order, United States dollars. DESIGNATED LIBOR PAGE: The term "Designated LIBOR Page" shall mean either (a) the display on the Reuters Monitor Money Rates Service (or any successor service) on the page specified in such Company Order (or any other page as may replace such page on such service) for the purpose of displaying the London interbank rates of major banks for the Designated LIBOR Currency (if "LIBOR Reuters" is specified in the applicable Company Order), or (b) the display on Bridge Telerate, Inc. (or any successor service) on the page specified in the applicable Company Order (or any other page as may replace such page on such service) for the purpose of displaying the London interbank rates of major banks for the Designated LIBOR Currency (if "LIBOR Telerate" is specified in the applicable Company Order or neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable Company Order as the method for calculating LIBOR). ELEVENTH DISTRICT COST OF FUNDS RATE: The term "Eleventh District Cost of Funds Rate" shall mean, with respect to any Interest Determination Date relating to a Floating Rate Note for which the interest rate is determined with reference to the Eleventh District Cost of Funds Rate (an "Eleventh District Cost of Funds Rate Interest Determination Date"), the rate equal to the monthly weighted average cost of funds for the calendar month immediately preceding the month in which such Eleventh District Cost of Funds Rate Interest Determination Date falls as set forth under the caption "11th District" on the display on Bridge Telerate, Inc. (or any successor service) on page 7058 ("Telerate Page 7058") as of 11:00 A.M., San Francisco time, on such Eleventh District Cost of Funds Rate Interest Determination Date. If such rate does not appear on Telerate Page 7058 on such Eleventh District Cost of Funds Rate Interest Determination Date, then the Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds Rate Interest Determination Date shall be the monthly -7- 9 weighted average cost of funds paid by member institutions of the Eleventh Federal Home Loan Bank District that was most recently announced (the "Index") by the FHLB of San Francisco as such cost of funds for the calendar month immediately preceding such Eleventh District Cost of Funds Rate Interest Determination Date. If the FHLB of San Francisco fails to announce the Index on or prior to such Eleventh District Cost of Funds Rate Interest Determination Date for the calendar month immediately preceding such Eleventh District Cost of Funds Rate Interest Determination Date, the Eleventh District Cost of Funds Rate determined as of such Eleventh District Cost of Funds Rate Interest Determination Date will be the Eleventh District Cost of Funds Rate in effect on such Eleventh District Cost of Funds Rate Interest Determination Date. FEDERAL FUNDS RATE: The terms "Federal Funds Rate" shall mean, with respect to any Interest Determination Date relating to a Floating Rate Note for which the interest rate is determined with reference to the Federal Funds Rate (a "Federal Funds Rate Interest Determination Date"), the rate on such date for United States dollar federal funds as published in H.15(519) under the heading "Federal Funds (Effective)", as such rate is displayed on Bridge Telerate, Inc. (or any successor service) on page 120 ("Telerate Page 120"), or, if such rate does not appear on Telerate Page 120 or is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on such Federal Funds Rate Interest Determination Date for United States dollar federal funds as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying such rate, under the caption "Federal Funds (Effective)." If such rate does not appear on Telerate Page 120 or is not yet published in H.15(519), H.15 Daily Update or another recognized electronic source by 3:00 P.M., New York City time, on the related Calculation Date, then the Federal Funds Rate on such Federal Funds Rate Interest Determination Date will be calculated by the Calculation Agent and will be the arithmetic mean of the rates for the last transaction in overnight United States dollar federal funds arranged by three leading brokers of federal funds transactions in The City of New York (which may include the Agents or their affiliates) selected by the Calculation Agent prior to 9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination Date; provided, however, that if the brokers so selected by the Calculation Agent are not quoting as mentioned in this sentence, the Federal Funds Rate determined as of such Federal Funds Rate Interest Determination Date will be the Federal Funds Rate in effect on such Federal Funds Rate Interest Determination Date. FINAL MATURITY DATE: The term "Final Maturity Date" shall mean the date beyond which the Stated Maturity of a particular Subordinated Note may not be extended at the option of the Company. FIXED RATE AMORTIZING NOTE: The term "Fixed Rate Amortizing Note" shall mean a Fixed Rate Note which is an Amortizing Note. FIXED RATE NOTE: The term "Fixed Rate Note" shall mean a Subordinated Note which bears interest at a fixed rate (which may be zero in the case of a Zero Coupon Note) specified in the applicable Company Order. -8- 10 FLOATING RATE NOTE: The term "Floating Rate Note" shall mean a Subordinated Note which bears interest at a variable rate determined by reference to an interest rate formula, and includes a CD Rate Note, a CMT Rate Note, a Commercial Paper Rate Note, an Eleventh District Cost of Funds Rate Note, a Federal Funds Rate Note, a LIBOR Note, a Prime Rate Note or a Treasury Rate Note. GLOBAL NOTE: The term "Global Note" shall mean a single Subordinated Note that is issued to evidence Subordinated Notes having identical terms and provisions, which is delivered to the Depositary or pursuant to instructions of the Depositary and which shall be registered in the name of the Depositary or its nominee. H.15(519): The term "H.15(519)" shall mean the weekly publication "Statistical Release H.15(519), Selected Interest Rates" or any successor publication published by the Board of Governors of the Federal Reserve System. H.15 DAILY UPDATE: The term "H.15 Daily Update" shall mean the daily update of H.15(519), available through the world-wide-web site of the Board of Governors of the Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any successor site or publication. INDEX MATURITY: The term "Index Maturity" of a particular Floating Rate Note shall mean the period to Stated Maturity of the instrument or obligation with respect to which the related Interest Rate Basis or Bases of such Floating Rate Note is calculated, as specified in the applicable Company Order. INITIAL INTEREST RATE: The term "Initial Interest Rate" for a particular Floating Rate Note shall mean the interest rate specified in the applicable Company Order as in effect from the Original Issue Date of such Floating Rate Note to its first Interest Reset Date. INITIAL REDEMPTION DATE: The term "Initial Redemption Date" shall mean the earliest date, if any, on which a particular Subordinated Note shall be redeemable at the option of the Company prior to the Stated Maturity of such Subordinated Note, as specified in the applicable Company Order. INTEREST ACCRUAL PERIOD: The term "Interest Accrual Period" for a particular Floating Rate Note shall mean the period from the date of issue of such Floating Rate Note, or from an Interest Reset Date, if any, to its next subsequent Interest Reset Date. -9- 11 INTEREST DETERMINATION DATE: The term "Interest Determination Date" shall mean, with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate, the second Business Day immediately preceding the applicable Interest Reset Date; the "Interest Determination Date" with respect to the Eleventh District Cost of Funds Rate shall be the last working day of the month immediately preceding the applicable Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of San Francisco") publishes the Index; and the "Interest Determination Date" with respect to LIBOR shall be the second London Business Day immediately preceding the applicable Interest Reset Date, unless the Designated LIBOR Currency is British pounds sterling, in which case the "Interest Determination Date" shall be the applicable Interest Reset Date. With respect to the Treasury Rate, the "Interest Determination Date" shall be the day in the week in which the applicable Interest Reset Date falls on which day Treasury Bills are normally auctioned (Treasury Bills are normally sold at an auction held on Monday of each week, unless such Monday is a legal holiday, in which case the auction is normally held on the immediately succeeding Tuesday although such auction may be held on the preceding Friday); provided, however, that if an auction is held on the Friday of the week preceding the applicable Interest Reset Date, the "Interest Determination Date" shall be such preceding Friday; provided, further, that if the Interest Determination Date would otherwise fall on an Interest Reset Date, then such Interest Reset Date shall be postponed to the next succeeding Business Day. The "Interest Determination Date" pertaining to a Floating Rate Note the interest rate of which is determined by reference to two or more Interest Rate Bases shall be the most recent Business Day which is at least two Business Days prior to the applicable Interest Reset Date for such Floating Rate Note on which each Interest Rate Basis is determinable. Each Interest Rate Basis shall be determined as of such date, and the applicable interest rate shall take effect on the applicable Interest Reset Date. INTEREST PAYMENT DATE: (a) The term "Interest Payment Date" shall mean with respect to a Floating Rate Note, including a Floating Rate Amortizing Note, which has an Interest Reset Date reset (1) daily, weekly or monthly: the third Wednesday of each month or the third Wednesday of March, June, September and December of each year, as specified in the applicable Company Order, (2) quarterly: the third Wednesday of March, June, September and December of each year, as specified in the applicable Company Order, (3) semiannually: the third Wednesday of the two months of each year, as specified in the applicable Company Order; (4) annually: the third Wednesday of the month of each year, as specified in the applicable Company Order, and, in each case, the Maturity Date of such Floating Rate Note and, with respect to defaulted interest on such Floating Rate Note, the date established by the Company for the payment of such defaulted interest. If any Interest Payment Date (other than at Maturity) for any Floating Rate Note would fall on a day that is not a Business Day with respect to such Floating Rate Note, such Interest Payment Date will be the immediately following day that is a Business Day with respect to such Floating Rate Note, except that, in the case of a LIBOR Note, if such Business Day with respect to such Floating Rate Note is in the next succeeding calendar month, such Interest Payment Date shall be the immediately preceding London Business Day. (b) The term "Interest Payment Date" shall mean with respect to a Fixed Rate Note, including a Fixed Rate Amortizing Note, each March 1 and September 1, or such other dates which are specified in the applicable Company Order during the period such Fixed Rate Note is outstanding, the Maturity Date of such Fixed Rate Note, and with respect to defaulted interest on such Fixed Rate Note, the date established by the Company for the payment of such defaulted interest. (c) Notwithstanding the foregoing, the first Interest Payment Date for any Subordinated Note originally issued between a Record Date and the next Interest Payment Date shall be the Interest Payment Date following the next succeeding Record Date. -10- 12 INTEREST RATE: (a) The term "Interest Rate" for a particular Floating Rate Note shall mean (1) from the date of issue of such Floating Rate Note to the first Interest Reset Date for such Floating Rate Note, the Initial Interest Rate, and (2) each Interest Accrual Period commencing on or after such First Interest Reset Date, the Base Rate with reference to the Index Maturity for such Floating Rate Note as specified in the applicable Company Order plus or minus the Spread, if any, multiplied by the Spread Multiplier, if any; PROVIDED that in the event no Spread or Spread Multiplier is provided in such Company Order, the Spread and Spread Multiplier shall be zero and one, respectively; PROVIDED, FURTHER, in no event shall the Interest Rate be greater than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if any; PROVIDED, FURTHER, the Interest Rate in effect for the ten days immediately prior to Maturity will be the Interest Rate in effect on the tenth day preceding such Maturity; and PROVIDED, FURTHER, the Interest Rate will in no event be higher than the maximum rate permitted by Texas or other applicable law, as the same may be modified by United States federal laws of general application. (b) The term "Interest Rate" for a particular Fixed Rate Note shall mean the interest rate specified in the applicable Company Order. INTEREST RATE BASIS: The term "Interest Rate Basis" shall mean with respect to (a) CD Rate Notes, the CD Rate, (b) CMT Rate Notes, the CMT Rate, (c) Commercial Paper Rate Notes, the Commercial Paper Rate, (d) Eleventh District Cost of Funds Note, the Eleventh District Cost of Funds Rate, (e) Federal Funds Rate Notes, the Federal Funds Rate, (f) LIBOR Notes, LIBOR, (g) Prime Rate Notes, the Prime Rate, (h) Treasury Rate Notes, the Treasury Rate, and (i) any other Floating Rate Note, the interest rate formula which determines the variable rate at which such Subordinated Note bears interest. INTEREST RESET DATE: The term "Interest Reset Date" shall mean, in the case of a Floating Rate Note specified in the applicable Company Order as being reset (a) daily: each Business Day; (b) weekly: the Wednesday of each week (with the exception of weekly reset Treasury Rate Notes which reset the Tuesday of each week, except as specified below); (c) monthly: the third Wednesday of each month (with the exception of monthly reset Floating Rate Notes as to which the Eleventh District Cost of Funds Rate is an applicable Interest Rate Basis which will reset on the first calendar day of the month); (d) quarterly: the third Wednesday of March, June, September and December; (e) semiannually: the third Wednesday of the two months specified in the applicable Company Order; and (f) annually: the third Wednesday of the month specified in the applicable Company Order. If any Interest Reset Date for a Floating Rate Note would otherwise be a day which is not a Business Day, such Interest Reset Date shall be postponed to the next succeeding day that is a Business Day, except that in the case of a LIBOR Note, if such Business Day is in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding London Business Day. If, in the case of a Treasury Rate Note, an Interest Reset Date shall fall on a day on which the Treasury auctions Treasury Bills, then such Interest Reset Date shall instead be the first Business Day immediately following such auction. INTEREST RESET PERIOD: The term "Interest Reset Period" shall mean for: (a) each Floating Rate Note on which interest is reset monthly, quarterly, semiannually or annually, and each Fixed Rate Note, the period: -11- 13 (1) beginning on and including the Original Issue Date of such Subordinated Note or the most recent Interest Payment Date on which interest was paid on such Subordinated Note, and (2) ending on but not including the next Interest Payment Date or, for the last Interest Reset Period, the Maturity Date, of such Subordinated Note; (b) each Floating Rate Note on which interest is reset daily or weekly, the period: (1) beginning on and including the Original Issue Date of such Floating Rate Note, or beginning on but excluding the most recent Record Date through which interest was paid on such Subordinated Note, and (2) ending on and including the next Record Date or, for the last Interest Reset Period, ending on but excluding the Maturity Date, of such Subordinated Note; PROVIDED, HOWEVER, that the first Interest Reset Period for any Subordinated Note which has its Original Issue date after a Record Date and prior to its next Interest Payment Date, shall begin on and include such Original Issue Date and (i) end on and include the next Record Date for Floating Rate Notes on which interest is reset daily or weekly, and (ii) end on but not include the second Interest Payment Date after the Original Issue Date for all other Subordinated Notes. ISSUE PRICE: The term "Issue Price" shall mean the price expressed as a percentage of the aggregate principal amount of a Subordinated Note at which such Subordinated Note is issued. LIBOR: The term "LIBOR" for a particular Floating Rate Note, unless otherwise indicated in the applicable Company Order, shall mean, with respect to any LIBOR Interest Determination Date, the rate determined: (i) With respect to any LIBOR Interest Determination Date, LIBOR shall be either: (a) if "LIBOR Telerate" is specified in the applicable Company Order or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable Company Order as the method for calculating LIBOR, the rate for deposits in the Designated LIBOR Currency having the Index Maturity specified in such Company Order, commencing on such Interest Reset Date, that appears on the Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest Determination Date; or (b) if "LIBOR Reuters" is specified in the applicable Pricing Supplement, the arithmetic mean of the offered rates (unless the Designated LIBOR Page by its terms provides only for a single rate, in which case such single rate shall be used) for deposits in the Designated LIBOR Currency having the Index Maturity specified in such Pricing Supplement, commencing on the applicable Interest Reset Date, that appear (or, if only a single rate is required as aforesaid, appears) on the Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest Determination Date. If fewer than two such offered rates so appear, or if no such rate so appears, as applicable, LIBOR on such LIBOR Interest Determination Date shall be determined in accordance with the provisions described in clause (ii) below. (ii) With respect to a LIBOR Interest Determination Date on which fewer than two offered rates appear, or no rate appears, as the case may be, on the Designated LIBOR Page as -12- 14 specified in clause (i) above, the Calculation Agent will request the principal London offices of each of four major reference banks (which may include affiliates of the Agents) in the London interbank market, as selected by the Calculation Agent, to provide the Calculation Agent with its offered quotation for deposits in the Designated LIBOR Currency for the period of the Index Maturity specified in the applicable Pricing Supplement, commencing on the applicable Interest Reset Date, to prime banks in the London interbank market at approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date and in a principal amount that is representative for a single transaction in the Designated LIBOR Currency in such market at such time. If at least two such quotations are so provided, then LIBOR on such LIBOR Interest Determination Date shall be the arithmetic mean of such quotations. If fewer than two such quotations are so provided, then LIBOR on such LIBOR Interest Determination Date shall be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in the applicable Principal Financial Center, on such LIBOR Interest Determination Date by three major banks (which may include affiliates of the Agents) in such Principal Financial Center selected by the Calculation Agent for loans in the Designated LIBOR Currency to leading European banks, having the Index Maturity specified in the applicable Company Order and in a principal amount that is representative for a single transaction in the Designated LIBOR Currency in such market at such time; provided, however, that if the banks so selected by the Calculation Agent are not quoting as mentioned in this sentence, LIBOR determined as of such LIBOR Interest Determination Date shall be LIBOR in effect on such LIBOR Interest Determination Date. LIBOR INTEREST DETERMINATION DATE: The term "LIBOR Interest Determination Date" shall mean the Interest Determination Date pertaining to a LIBOR Note. LIBOR NOTES: The term "LIBOR Notes" shall mean Floating Rate Notes which are specified in the applicable Company Order as bearing interest at an interest rate calculated with reference to LIBOR. LONDON BUSINESS DAY: The term "London Business Day" shall mean any day on which dealings in the Designated LIBOR Currency are transacted in the London interbank market. MATURITY DATE: The term "Maturity Date," when used with respect to any Subordinated Note, shall mean the date on which the principal of such Subordinated Note or an installment of principal becomes due and payable in accordance with its terms and the terms of this Indenture as therein or herein provided, whether at Stated Maturity, upon declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise. MAXIMUM INTEREST RATE: The term "Maximum Interest Rate" shall mean the maximum rate of interest, if any, which may be applicable to any Floating Rate Note during any Interest Accrual Period as specified in the applicable Company Order. -13- 15 MINIMUM INTEREST RATE: The term "Minimum Interest Rate" shall mean the minimum rate of interest, if any, which may be applicable to any Floating Rate Note during any Interest Accrual Period as specified in the applicable Company Order. MONEY MARKET YIELD: The term "Money Market Yield" shall be the yield (expressed as a percentage) calculated in accordance with the following formula: Money Market Yield = [(D x 360)/(360 - (D x M))] x 100 where "D" refers to the applicable per annum rate for commercial paper quoted on a bank discount basis and expressed as a decimal, and "M" refers to the actual number of days in the applicable Interest Reset Period. NOTEHOLDER; HOLDER: The terms "Noteholder" or "Holder" shall mean any Person in whose name at the time a particular Subordinated Note is registered in the register of the Company kept for that purpose in accordance with the terms hereof. OFFICERS' CERTIFICATE: The term "Officers' Certificate" when used with respect to the Company, shall mean a certificate signed by the Chairman of the Board, the President or any Vice President and by the Secretary or an Assistant Secretary of the Company. OPTIONAL INTEREST RESET DATE: The term "Optional Interest Reset Date" shall mean each date on which the interest rate on a Fixed Rate Reset Note or the Spread and/or Spread Multiplier of a Floating Rate Reset Note may be reset at the option of the Company. ORIGINAL ISSUE DATE: The term "Original Issue Date" shall mean for a particular Subordinated Note, or portions thereof, the date upon which it, or such portion, was issued by the Company pursuant to this Indenture or any indenture supplemental thereto and authenticated by the Trustee (other than in connection with a transfer, exchange or substitution). ORIGINAL ISSUE DISCOUNT NOTE: The term "Original Issue Discount Note" shall mean (i) a Subordinated Note that has a "stated redemption price at maturity" that exceeds its "issue price", each as defined for United States federal income tax purposes, by at least 0.25% of its stated redemption price at maturity multiplied by the number of complete years from the Original Issue Date to the Stated Maturity for such Subordinated Note (or in the case of a Subordinated Note that provides for payment of any amount other than the "qualified stated interest", as defined for United States federal income tax purposes, prior to maturity, the weighted average maturity -14- 16 of the Subordinated Note) and (ii) any other Subordinated Note designated by the Company in the applicable Company Order as issued with original issue discount for United States federal income tax purposes. PERSON: The term "Person" shall mean any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. PRIME RATE: The term "Prime Rate" for a particular Floating Rate Note, unless otherwise indicated in the applicable Company Order, shall mean, with respect to any Prime Rate Interest Determination Date, the rate on such date as published in H.15(519) under the caption "Bank Prime Loan" or, if not published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on such Prime Rate Interest Determination Date as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying such rate, under the caption "Bank Prime Loan." If such rate is not yet published in H.15(519), H.15 Daily Update or another recognized electronic source by 3:00 P.M., New York City time, on the related Calculation Date, then the Prime Rate shall be the arithmetic mean of the rates of interest publicly announced by each bank that appears on the Reuters Screen USPRIME1 Page (as hereinafter defined) as such bank's prime rate or base lending rate as of 11:00 A.M., New York City time, on such Prime Rate Interest Determination Date. If fewer than four such rates appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest Determination Date, then the Prime Rate shall be the arithmetic mean of the prime rates or base lending rates quoted on the basis of the actual number of days in the year divided by a 360-day year as of the close of business on such Prime Rate Interest Determination Date by four major money center banks (which may include affiliates of the Agents) in The City of New York selected by the Calculation Agent. If fewer than four such quotations are so provided, then the Prime Rate shall be the arithmetic mean of four prime rates quoted on the basis of the actual number of days in the year divided by a 360-day year as of the close of business on such Prime Rate Interest Determination Date as furnished in The City of New York by the major money center banks, if any, that have provided such quotations and by a reasonable number of substitute banks or trust companies (which may include affiliates of the Agents) to obtain four such prime rate quotations, provided such substitute banks or trust companies are organized and doing business under the laws of the United States, or any State thereof, each having total equity capital of at least $500 million and being subject to supervision or examination by Federal or State authority, selected by the Calculation Agent to provide such rate or rates; provided, however, that if the banks or trust companies so selected by the Calculation Agent are not quoting as mentioned in this sentence, the Prime Rate determined as of such Prime Rate Interest Determination Date will be the Prime Rate in effect on such Prime Rate Interest Determination Date. PRIME RATE NOTES: The term "Prime Rate Notes" shall mean Floating Rate Notes which are specified in the applicable Company Order as bearing interest at an interest rate calculated with reference to the Prime Rate. PRINCIPAL AMOUNT: The term "principal amount" with respect to any Subordinated Note shall mean the principal amount thereof set forth in the applicable Company Order; PROVIDED that in the case of any Original Issue Discount Note, its principal amount as of (i) any date that the principal amount of such Subordinated Note is to be repaid prior to its Stated Maturity, whether upon declaration of acceleration, call for redemption, -15- 17 repayment at the option of the Noteholder or otherwise, or (ii) any date that any consent, notice, request, direction, waiver or suit by the Noteholders shall be deemed to be given, made or commenced under this Indenture, such term shall mean the Amortized Face Amount of such Subordinated Note as of such date. PRINCIPAL FINANCIAL CENTER: The term "Principal Financial Center" shall mean the capital city of the country to which the Designated LIBOR Currency relates (or, in the case of ECU, Luxembourg), except that with respect to United States dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, Portuguese escudos, South African rand and Swiss francs, the "Principal Financial Center" shall be The City of New York, Sydney, Toronto, Frankfurt, Amsterdam, London, Johannesburg and Zurich, respectively RECORD DATE: The term "Record Date" shall mean for the Interest Payment Date for the payment of interest for an Interest Reset Period for a particular Subordinated Note, unless otherwise specified in the applicable Company Order, (a) the day which is fifteen calendar days immediately prior to such Interest Payment Date, whether or not such day is a Business Day, (b) the Maturity Date of such Subordinated Note, unless such Maturity Date for a Fixed Rate Note is a January 1 or a July 1, in which event the Record Date will be as provided in clause (a), and (c) a date which is not less than five Business Days immediately preceding the Interest Payment Date of defaulted interest on such Subordinated Note established by notice given by first-class mail by or on behalf of the Company to the Holder of such Subordinated Note not less than fifteen calendar days prior to such Interest Payment Date. REDEMPTION DATE: The term "Redemption Date" for a Subordinated Note shall mean the date fixed for the redemption of such Subordinated Note in accordance with the provisions of this Indenture. RESET NOTE: The term "Reset Note" shall mean a Fixed Rate Note, with respect to which the Company has the option to reset the interest rate, and a Floating Rate Note, with respect to which the Company has the option to reset the Spread and/or Spread Multiplier. REUTERS SCREEN USPRIME1 PAGE: The term "Reuters Screen USPRIME1" shall mean the display designated as page "USPRIME1" on the Reuters Monitor Money Rate Service (or such other page which may replace the USPRIME1 page on such service) for the purpose of displaying the prime rate or base lending rate of major United States banks. SPREAD: The term "Spread" applicable to a particular Floating Rate Note shall mean the number of Basis Points to be added to or subtracted from the related Interest Rate Basis or Bases applicable to such Floating Rate Note as specified in the applicable Company Order, used in the calculation of the Interest Rate for such Floating Rate Note. -16- 18 SPREAD MULTIPLIER: The term "Spread Multiplier" applicable to a particular Floating Rate Note shall mean the percentage of the related Interest Rate Basis or Bases applicable to such Floating Rate Note as specified in the applicable Company Order, used in the calculation of the Interest Rate for such Floating Rate Note. STATED MATURITY: The term "Stated Maturity," when used with respect to any Subordinated Note, shall mean the date specified in such Subordinated Note as the date on which the principal of such Subordinated Note is due and payable. TREASURY: The term "Treasury" shall mean the United States Department of Treasury. TREASURY BILLS: The term "Treasury Bills" shall mean direct obligations of the United States. TREASURY RATE: The term "Treasury Rate" for a particular Floating Rate Note, unless otherwise indicated in the applicable Company Order, shall mean, with respect to any Treasury Rate Interest Determination Date, the rate from the auction held on such Treasury Rate Interest Determination Date (the "Auction") of Treasury Bills having the Index Maturity specified in the applicable Company Order under the caption "AVGE INVEST YIELD" on the display on Bridge Telerate, Inc. (or any successor service) on page 56 ("Telerate Page 56") or page 57 ("Telerate Page 57") or, if not so published by 3:00 P.M., New York City time, on the related Calculation Date, the auction average rate of such Treasury Bills (expressed as a bond equivalent on the basis of a year of 365 or 366 days, as applicable, and applied on a daily basis) as otherwise announced by the United States Department of the Treasury. In the event that the results of the Auction of Treasury Bills having the Index Maturity specified in the applicable Company Order are not so published by 3:00 P.M., New York City time, on the related Calculation Date, or if no such Auction is held, then the Treasury Rate shall be the rate (expressed as a bond equivalent on the basis of a year of 365 or 366 days, as applicable, and applied on a daily basis) on such Treasury Rate Interest Determination Date of Treasury Bills having the Index Maturity specified in the applicable Company Order as published in H.15(519) under the caption "U.S. Government Securities/Treasury Bills/Secondary Market" or, if not yet published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on such Treasury Rate Interest Determination Date of such Treasury Bills as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying such rate, under the caption "U.S. Government Securities/Treasury Bills/Secondary Market." If such rate is not yet published in H.15(519), H.15 Daily Update or another recognized electronic source, then the Treasury Rate shall be calculated by the Calculation Agent and shall be a yield to maturity (expressed as a bond equivalent on the basis of a year of 365 or 366 days, as applicable, and applied on a daily basis) of the arithmetic mean of the secondary market bid rates, as of approximately 3:30 P.M., New York City time, on such Treasury Rate Interest Determination Date, of three leading primary United States government securities dealers (which may include the Agents or their affiliates) selected by the Calculation Agent, for the issue of Treasury Bills with a remaining maturity closest to the Index Maturity specified in the applicable Company Order; provided, however, that if the dealers so selected by the Calculation Agent are not quoting as mentioned in this sentence, the Treasury Rate determined as of such Treasury Rate Interest Determination Date shall be the Treasury Rate in effect on such Treasury Rate Interest Determination Date. -17- 19 TREASURY RATE NOTES: The term "Treasury Rate Notes" shall mean Floating Rate Notes which are specified in the applicable Company Order as bearing interest at an interest rate calculated with reference to the Treasury Rate. TRUSTEE: The term "Trustee" shall mean Chase Bank of Texas, National Association and shall also include any successor Trustee. YIELD TO MATURITY: The term "Yield to Maturity" shall mean for a particular Subordinated Note the yield to maturity of such Subordinated Note, computed in accordance with generally accepted United States bond yield computation principles and expressed as a percentage, specified in the applicable Company Order. ZERO COUPON NOTE: The term "Zero Coupon Note" means a Subordinated Note issued at a price representing a discount from the principal amount payable at maturity and bearing a zero fixed rate of interest. ARTICLE TWO Terms and Issuance of the Subordinated Notes Section 2.01. Issuance and Designation. A Series of Subordinated Debt Securities which shall be designated as the Company's "Subordinated Medium-Term Notes, Series A" shall be executed, authenticated and delivered from time to time in accordance with the provisions of, and shall in all respects be subject to, the terms, conditions and covenants of, the Indenture and this Indenture Supplement (including the form of Subordinated Notes set forth in Exhibits A and B). The aggregate principal amount of the Subordinated Notes which may be authenticated and delivered under the Indenture Supplement shall not, except as permitted by the provisions of the Indenture, exceed $125,000,000. Section 2.02. Form and Other Terms of Subordinated Notes; Incorporation of Terms. (a) Subject to subsection (b) below, the Subordinated Notes shall be in the form attached hereto as Exhibits A and B, respectively. The Subordinated Notes shall be registered in such names, shall be in such amounts and shall have such Original Issue Dates, Interest Rates, Maturity Dates, Redemption Dates, if any, Initial Redemption Percentages, if any, and Annual Redemption Percentage Reductions, if any, and such other terms as are communicated by the Company to the Trustee in accordance with the Administrative Procedures described in the Distribution Agreement, dated November 24, 1998, between the Company and the agents named therein. The terms of such Subordinated Notes are herein incorporated by reference and are part of this Indenture Supplement. (b) Any Subordinated Note may be issued without the consent of the Holders of any Subordinated Notes in any such other form or forms and have such other term or terms that may be established consistent with the Indenture and this Indenture Supplement, including, but not limited to, Subordinated Notes denominated in a foreign currency ("Foreign Currency Subordinated Notes"), and Subordinated Notes that initially bear interest at a fixed rate or floating rate through a certain date and then -18- 20 bear interest as established by a remarketing agent for either a period of 365 days or less or a period of more than 365 days ("Remarketed Subordinated Notes"). Section 2.03. Depository for Global Securities. The Depositary for any Global Securities of the series of which a Subordinated Note is a part shall be the Depository Trust Company in The City of New York. Section 2.04. Place of Payment. The Place of Payment in respect of the Subordinated Notes will be at the principal office or agency of the Company in Dallas, Texas or at the office or place of business of the Trustee or its successor in trust under the Indenture, which, at the date hereof, is located at Chase Global Trust, 450 W. 33rd, 15th Floor, New York, New York 10001. ARTICLE THREE Defeasance Section 3.01. Option to Effect Legal Defeasance. The Company may, at any time, with respect to the Subordinated Notes, elect to have either Section 13.01 of the Indenture or Section 3.02 of this Indenture Supplement be applied to all outstanding Subordinated Notes upon compliance with the conditions set forth in Article Thirteen of the Indenture and below in this Article Three. Section 3.02. Legal Defeasance. Upon the Company's exercise under Section 3.01 of this Indenture Supplement of the option applicable to Section 13.01 of the Indenture, the Company may terminate its obligations under the Subordinated Notes, the Indenture and this Indenture Supplement by complying with the terms and conditions of Section 13.01 of the Indenture; provided, however, that the Opinion of Counsel delivered to the Trustee will also state that either (A) the Company has received from, or there has been published by, the Internal Revenue Service, a ruling or (B) since the date hereof, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the holders of the outstanding Subordinated Notes will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred. ARTICLE FOUR Miscellaneous Section 4.01. Ratification of Indenture. As supplemented by this Indenture Supplement, the Indenture is in all respects ratified and confirmed and the Indenture as so supplemented by this Indenture Supplement shall be read, taken and construed as one and the same instrument. Section 4.02. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture Supplement by any of the provisions of the Trust Indenture Act, such required provisions shall control. Section 4.03. Effect of Headings. The article and section headings herein are included for convenience only and shall not affect the construction hereof. -19- 21 Section 4.04. Counterparts. This Indenture Supplement may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Section 4.05. Severability. In case any provision of this Indenture Supplement or in the Subordinated Notes shall be found invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 4.06. Benefits of Indenture Supplement. Nothing in this Indenture Supplement or in the Subordinated Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture Supplement. Section 4.07. Acceptance of Trusts. Chase Bank of Texas, National Association hereby accepts the trusts in this Indenture Supplement declared and provided, upon the terms and conditions herein and in the Indenture set forth. Section 4.08. Governing Law. This Indenture Supplement and each Subordinated Note issued hereunder shall be deemed to be a contract made under the laws of the State of Texas, and for all purposes shall be construed in accordance with the laws of said State. [Remainder of page intentionally left blank.] -20- 22 IN WITNESS WHEREOF, the Company and the Trustee have caused this Indenture Supplement to be duly executed by their respective officers thereunto duly authorized and their respective seals duly attested to be hereunto affixed all as of the day and year first above written. CENTEX CORPORATION [SEAL] Attest: By: --------------------------------- Vicki A. Roberts Vice President and Treasurer - ---------------------------- Drew F. Nachowiak Assistant Secretary CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee [SEAL] Attest: By: --------------------------------- Name: Title: - ---------------------------- Name: Title: -21- 23 STATE OF TEXAS ) ) COUNTY OF DALLAS ) BEFORE ME, the undersigned authority, a Notary Public in and for said state, on this day personally appeared Vicki A. Roberts and Drew F. Nachowiak, known to me to be the persons and officers whose names are subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said CENTEX CORPORATION, a Nevada corporation, and that they executed the same as the act of said corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of November, 1998. ------------------------------------------- Notary Public in and for the State of Texas My commission expires: ------------------------------------------- Printed Name of Notary Public - ---------------------- STATE OF TEXAS ) ) COUNTY OF DALLAS ) BEFORE ME, the undersigned authority, a Notary Public in and for said state, on this day personally appeared ________________ and ________________, known to me to be the persons and officers whose names are subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association, and that they executed the same as the act of said national banking association for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of November, 1998. ------------------------------------------- Notary Public in and for the State of Texas My commission expires: ------------------------------------------- Printed Name of Notary Public - ---------------------- -22- 24 EXHIBIT A GLOBAL SUBORDINATED FIXED RATE NOTE REGISTERED PRINCIPAL AMOUNT NO.______ $ CENTEX CORPORATION Subordinated Medium-Term Note, Series A Fixed Rate Unless this Subordinated Note is presented by an authorized representative of The Depository Trust Company, a New York corporation, 55 Water Street, New York, New York ("DTC"), to Centex Corporation, a Nevada corporation (herein called the "Company," which term includes any successor person under the Indenture referred to on the reverse hereof), or its agent for registration of transfer, exchange or payment, and any Subordinated Note issued is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein. Unless and until it is exchanged in whole or in part for Subordinated Notes in certificated form, this Subordinated Note may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor of DTC or a nominee of such successor of DTC. The following summary of terms is subject to the provisions set forth below:
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 Subordinated Note has two or more Original Issue Dates, interest shall, beginning on each such Original Issue Date, begin to accrue for that part of the principal 25 amount to which such Original Issue Date is applicable) specified above, or from and including the most recent Interest Payment Date specified above to which interest has been paid or duly provided for, as the case may be. Interest shall be paid in arrears semiannually on each Interest Payment Date in each year commencing on (a) the first such Interest Payment Date next succeeding the earliest Original Issue Date or Dates, or (b) if such Original Issue Date is after a Record Date and prior to the first Interest Payment Date, on the second Interest Payment Date, at the per annum Interest Rate set forth above until Maturity and the principal hereof is paid or made available for payment. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Subordinated Note is registered at the close of business on the Record Date specified above next preceding such Interest Payment Date; PROVIDED, HOWEVER, that if an Original Issue Date falls between a Record Date and the next Interest Payment Date, the first payment of interest with respect to such Original Issue Date will be made on the second Interest Payment Date subsequent to such Original Issue Date to the Person in whose name this Subordinated Note is registered at the close of business on the Record Date for such second Interest Payment Date; and PROVIDED, FURTHER, that interest payable on the Maturity Date or, if applicable, upon redemption, shall be payable to the Person to whom principal shall be payable. Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Record Date and shall be paid to the Person in whose name this Subordinated Note is registered at the close of business on a Record Date for the payment of such defaulted interest to be fixed by the Company, notice whereof shall be given to Subordinated Noteholders not less than fifteen calendar days prior to such Record Date. Payment of the principal of and any premium and interest on this Subordinated Note shall be made on or before 10:30 A.M., New York City time or such other time as shall be agreed upon between the Trustee and the Depositary, on the day on which such payment is due, by wire transfer into the account specified by the Depositary; PROVIDED, HOWEVER, that as a condition to the payment at the Maturity Date of any part of the principal and any applicable premium of this Global Subordinated Note, the Depositary shall surrender, or cause to be surrendered, this Global Subordinated Note to the Trustee. The Company will pay any administrative costs imposed by banks in connection with making payments by wire transfer, but not any tax, assessment or governmental charge imposed on the Holder of this Subordinated Note. Under certain circumstances, this Global Subordinated Note is exchangeable in whole or from time to time in part for a definitive individual Subordinated Note or Subordinated Notes, with the same Original Issue Date or Dates, Maturity Date, Interest Rate and redemption and other provisions as provided herein or in the Indenture. The Indenture and the Subordinated Notes shall be governed by, and construed in accordance with, the laws of the State of Texas. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS GLOBAL SUBORDINATED NOTE SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through a duly appointed and authorized authenticating agent, by manual signature of an authorized signatory, this Subordinated Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. 2 26 IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. Dated: CENTEX CORPORATION [SEAL] By: ---------------------------------- Vicki A. Roberts Vice President and Treasurer ATTEST: - ---------------------------------- Drew F. Nachowiak Assistant Secretary TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Subordinated Notes referred to in the within-mentioned Indenture. CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee By: ------------------------------- Authorized Signatory 3 27 [REVERSE OF GLOBAL SUBORDINATED FIXED RATE NOTE] CENTEX CORPORATION SUBORDINATED FIXED RATE MEDIUM-TERM NOTE, SERIES A This Global Subordinated Note is one of, and a global security which represents Subordinated Notes which are part of, a duly authorized issue of Subordinated Debt Securities of the Company (herein called the "Subordinated Notes"), issued and to be issued in one or more Series under an Indenture dated as of March 12, 1987 (herein, together with all indentures supplemental thereto, called the "Subordinated Indenture") between the Company and Chase Bank of Texas, National Association, as Trustee (formerly, Texas Commerce Bank National Association) (herein called the "Trustee," which term includes any successor Trustee under the Subordinated Indenture), to which Subordinated Indenture and all indentures supplemental thereto (including the Indenture Supplement dated as of November 1, 1998 which authorizes the Subordinated Notes) reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Subordinated Noteholders, and of the terms upon which the Subordinated Notes are, and are to be, authenticated and delivered. All terms used in this Subordinated Note which are defined in the Subordinated Indenture or in any indenture supplemental thereto but are not defined in this Subordinated Note shall have the meanings assigned to them in the Subordinated Indenture or in any indenture supplemental thereto. Each Subordinated Note shall be dated the date of its authentication by the Trustee. Each Subordinated Note shall also bear an Original Issue Date or Dates which with respect to this Global Subordinated Note (or any portion thereof) shall mean the date or dates of the original issue of the Subordinated Notes represented hereby as specified on the face hereof, and such Original Issue Date or Dates shall remain the same for all Subordinated Notes subsequently issued upon transfer, exchange or substitution of such original Subordinated Note (or such subsequently issued Subordinated Notes) regardless of their dates of authentication. The Subordinated Notes may bear different dates, mature at different times, bear interest at different rates, be subject to different redemption provisions, if any, and may otherwise vary, all as provided in the Subordinated Indenture. The indebtedness evidenced by the Subordinated Notes is, to the extent and in the manner provided in the Subordinated Indenture and Indenture Supplement, subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness of the Company. As provided in the Subordinated Indenture, each holder of this Subordinated Note, by his acceptance hereof, agrees to and shall be bound by all the provisions of the Subordinated Indenture relating to such subordination and authorizes the Trustee to take such action in his behalf as may be necessary or appropriate to effectuate the subordination as provided in the Subordinated Indenture and appoints the Trustee his attorney-in-fact for any and all such purposes. Interest on this Subordinated Note will be payable on the Interest Payment Date or Interest Payment Dates as specified on the face hereof and, in either case, at Maturity. Unless otherwise specified on the face hereof, payments on this Subordinated Note with respect to any particular Interest Payment Date or the Maturity Date will include interest accrued from and including the applicable Original Issue Date, or from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, to but excluding the particular Interest Payment Date or the Maturity Date. Interest on this Subordinated Note will be computed and paid on the basis of a 360-day year of twelve 30-day months. Unless otherwise specified on the face hereof or the Company Order, if this Subordinated Note is an Amortizing Note, payments with respect to this Subordinated Note will be applied first to interest due and payable hereon and then to the reduction of the unpaid principal amount hereof. If this Subordinated Note is an Amortizing Note, a table setting forth the schedule of dates and amounts of payments of principal of and interest on this Subordinated Note or the formula for the amortization of principal and/or interest is set forth in an annex attached to this Subordinated Note. All percentages resulting from any calculation with respect to this Subordinated Note will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point (with five one-millionths of a percentage point rounded upward) and all dollar or foreign or composite currency amounts used in or resulting from any such calculation 4 28 with respect to this Subordinated Note will be rounded, in the case of United States dollars, to the nearest cent or, in the case of a foreign or composite currency, to the nearest unit (with one-half cent or unit being rounded upward). If an Interest Payment Date or the Maturity Date for this Subordinated Note falls on a day that is not a Business Day, payment of principal, premium, if any, and interest to be made on such day with respect to this Subordinated Note will be made on the next succeeding day that is a Business Day with the same force and effect as if made on the due date, and no additional interest will be payable on the date of payment for the period from and after the due date as a result of such delayed payment. This Subordinated Note will be redeemable at the option of the Company prior to its Stated Maturity Date only if an Initial Redemption Date is specified on the face hereof. If so specified, this Subordinated Note will be subject to redemption at the option of the Company on any date on and after such Initial Redemption Date in whole or from time to time in part in increments of $1,000 or any other integral multiple thereof, at the redemption prices specified in an annex attached to this Subordinated Note, plus accrued and unpaid interest to but excluding the date of redemption, but payments due with respect to this Subordinated Note prior to the date of redemption will be payable to the Holder of this Subordinated Note of record at the close of business on the relevant Record Date specified on the face hereof, all as provided in the Subordinated Indenture. Notice of such redemption shall be given by mailing by first-class mail a notice of such redemption not less than 20 nor more than 60 calendar days prior to the date fixed for redemption to the Holder of this Subordinated Note, in accordance with the provisions of the Subordinated Indenture. In the event of redemption of this Subordinated Note in part only, this Subordinated Note will be canceled and a new Subordinated Note or Subordinated Notes representing the unredeemed portion hereof will be issued in the name of the Holder hereof. This Subordinated Note is not subject to a sinking fund unless otherwise specified in an annex attached hereto. If so specified on the face of this Subordinated Note, (i) this Subordinated Note shall be subject to repayment, in whole or in part, prior to the Stated Maturity Date at the option of the Holder on a certain date or dates and at a certain price or prices, plus accrued and unpaid interest to but excluding the date of payment; and/or (ii) the Interest Rate specified on the face hereof may be reset by the Company in accordance with a formula or otherwise on the Optional Interest Reset Date or Dates specified on the face hereof. Notwithstanding anything herein to the contrary, if this Subordinated Note is an Original Issue Discount Note as specified on the face hereof, the amount payable in the event the principal amount hereof is declared to be due and payable immediately by reason of an Event of Default or in the event of redemption or repayment hereof prior to the Stated Maturity hereof, in lieu of the principal amount due at the Stated Maturity hereof, shall be the Amortized Face Amount of this Subordinated Note as of the date of declaration, redemption or repayment, as the case may be. The "Amortized Face Amount" of this Subordinated Note shall be the amount equal to the principal amount of this Subordinated Note multiplied by the Issue Price specified on the face hereof plus (b) the portion of the difference between the dollar amount thus obtained and the principal amount hereof that has accreted at the Yield to Maturity specified on the face hereof (computed in accordance with generally accepted United States bond yield computation principles) to such date of declaration, redemption or repayment but in no event shall the Amortized Face Amount of this Subordinated Note exceed the principal amount stated on the face hereof. In case an Event of Default shall have occurred and be continuing with respect to the Subordinated Notes, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Subordinated Indenture. The Subordinated Indenture provides that in certain events such declaration and its consequences may be waived by the Holders of a majority in aggregate principal amount of the Subordinated Notes then outstanding. An Event of Default with respect to the Subordinated Debt Security of any other Series issued under the Subordinated Indenture, including the failure to make any payment of principal or interest with respect thereto when and as due, will not be an Event of Default with respect to the Subordinated Notes. The Subordinated Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Subordinated Notes at the time outstanding, evidenced as in the Subordinated Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Subordinated Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Subordinated Notes; PROVIDED, HOWEVER, 5 29 that no such supplemental indenture shall (i) extend the fixed maturity of any Subordinated Notes, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable on the redemption thereof, without the consent of the Holder of each Subordinated Note so affected, or (ii) reduce the aforesaid percentage of Subordinated Notes, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of all Subordinated Notes then outstanding. It is also provided in the Subordinated Indenture that the Holders of a majority in aggregate principal amount of the Subordinated Notes at the time outstanding may on behalf of the Holders of all the Subordinated Notes waive any past default under the Subordinated Indenture and its consequences, except a default in the payment of the principal of or premium, if any, or interest on any of the Subordinated Notes. Any such consent or waiver by the Holder of this Global Subordinated Note (unless revoked as provided in the Subordinated Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Global Subordinated Note and of any Subordinated Note issued in exchange or substitution herefor, whether or not any notation of such consent or waiver is made upon this Global Subordinated Note. As set forth in, and subject to, the provisions of the Subordinated Indenture, no Holder of any Subordinated Notes will have any right to institute any proceeding with respect to the Subordinated Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of default in respect of the Subordinated Notes and the continuance thereof, and unless the Holders of not less than 25 percent in aggregate principal amount of the Subordinated Notes then outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee hereunder and shall have furnished to the Trustee such reasonable indemnity as it may require, and the Trustee shall have failed to institute such proceeding within 60 calendar days; PROVIDED, HOWEVER, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of and any premium or interest on this Global Subordinated Note on or after the respective due dates expressed herein. THIS SUBORDINATED NOTE IS A GLOBAL SUBORDINATED NOTE REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL SUBORDINATED NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. If at any time the Depositary for this Global Note notifies the Company that it is unwilling or unable to continue as Depositary for this Global Note or if at any time the Depositary for this Global Note shall no longer be registered as a clearing agency under the Securities Exchange Act of 1934, as amended, or any successor statute or regulation, the Company may appoint a successor Depositary with respect to this Global Note. If (A) a successor Depositary for this Global Note is not appointed by the Company within 60 calendar days after the Company receives such notice or becomes aware of such ineligibility, or (B) any Notes are represented by this Global Note at a time when an Event of Default with respect to the Notes shall have occurred and be continuing, then in each case the Company's election to issue this Note in global form shall no longer be effective with respect to this Global Subordinated Note and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Subordinated Notes in exchange for this Global Subordinated Note, shall authenticate and make available for delivery, individual Subordinated Notes of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of this Global Subordinated Note in exchange for this Global Subordinated Note. If agreed by the Company and the Depositary with respect to Subordinated Notes issued in the form of this Global Subordinated Note, the Depositary for such Global Subordinated Note shall surrender this Global Subordinated Note in exchange in whole or in part for individual Subordinated Notes of like tenor and terms in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and the Trustee shall authenticate and make available for delivery, without a service charge, (1) to each Person specified by such Depositary, a new Subordinated Note or Subordinated Notes of like tenor and terms, and of any authorized denominations as requested by such Person in aggregate principal amount equal to and in exchange for the beneficial interest of such Person in this Global Subordinated Note, and (2) to such Depositary a new Global Subordinated Note 6 30 of like tenor and terms and in a denomination equal to the difference, if any, between the principal amount of this Global Subordinated Note and the aggregate principal amount of Subordinated Notes delivered to Holders thereof. Under certain circumstances specified in the Subordinated Indenture, the Depositary may be required to surrender any two or more Global Subordinated Notes which have identical terms (but which may have differing Original Issue Dates) to the Trustee, and the Company shall execute and the Trustee shall authenticate and deliver to, or at the direction of, the Depositary a Global Subordinated Note in principal amount equal to the aggregate principal amount of, and with all terms identical to, the Global Subordinated Notes surrendered to the Trustee, and such new Global Subordinated Note shall indicate each applicable Original Issue Date and the principal amount applicable to each such Original Issue Date. No reference herein to the Subordinated Indenture and no provision of this Global Subordinated Note or of the Subordinated Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Global Subordinated Note at the times, places and rates, and in the coin or currency, herein prescribed. The Subordinated Indenture contains provisions for the satisfaction and discharge of the Subordinated Indenture upon compliance by the Company with certain conditions specified therein, which provisions apply to this Subordinated Note. The Company, the Trustee, any paying agent and any Subordinated Debt Security Registrar (as defined in the Subordinated Indenture) for the Subordinated Notes may deem and treat the Holder hereof as the absolute owner of this Global Subordinated Note (whether or not this Global Subordinated Note shall be overdue and notwithstanding any notation of ownership or other writing hereon made by anyone other than the Company or any such Subordinated Debt Security Registrar), for the purpose of receiving payment hereof or on account hereof and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any such Subordinated Debt Security Registrar shall be affected by any notice to the contrary. No recourse shall be had for the payment of the principal of, or premium, if any, or interest on, this Global Subordinated Note, or for any claim based hereon or otherwise in respect hereof, or based on or in respect of the Subordinated Indenture, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. 7 31 OPTION TO ELECT REPAYMENT The undersigned hereby irrevocably request(s) and instruct(s) the Company to repay this Subordinated Note (or portion hereof specified below) pursuant to its terms at a price equal to 100% of the principal amount to be repaid, together with unpaid interest accrued hereon to the Repayment Date, to the undersigned, at _____________________________________________________. If less than the entire principal amount of this Subordinated Note is to be repaid, specify the portion hereof (which shall be increments of _______________) which the holder elects to have repaid and specify the denomination or denominations (which shall be an authorized denomination) not less than ___________ of the Subordinated Notes to be issued to the Holder for the portion of this Subordinated Note not being repaid (in the absence of any such specification, one such Subordinated Note will be issued for the portion not to be repaid). Principal Amount to be Repaid: _________________________________ $_________________________________ CUSIP Number or other identifier: Date:____________________________ _________________________________ NOTICE: The signature(s) to this assignment must correspond with the name(s) as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever. The signature(s) must be guaranteed by an "eligible guarantor institution" that is a member or participant in the Securities Transfer Agents Medallion Program, the Stock Exchange Medallion Program or the New York Stock Exchange, Inc. Medallion Program. Notice: The signature(s) on this Option to Elect Repayment must correspond with the name(s) as written upon the face of this Subordinated Note in every particular, without alteration or enlargement or any change whatsoever. 8 32 ABBREVIATIONS The following abbreviations, when used in the inscription of the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - __________Custodian__________ TEN ENT - as tenants by the entireties (Cust) (Minor) Under Uniform Gifts JT TEN - as joint tenants with right of to Minors Act survivorship and not as tenants in ____________________________ common State
Additional abbreviations may also be used though not in the above list. __________________________ FOR VALUE RECEIVED the undersigned hereby sell(s) assign(s) and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE _______________________________________ _______________________________________ ______________________________________________________________________________ Please print or typewrite name and address including postal zip code of assignee ______________________________________________________________________________ the within Subordinated Note and all rights thereunder, hereby irrevocably constituting and appointing _________________________________________________________________ attorney to transfer said Subordinated Note on the books of the Company, with full power of substitution in the premises. Dated:_________________________ _________________________________ NOTICE: The signature(s) to this assignment must correspond with the name(s) as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever. The signature(s) must be guaranteed by an "eligible guarantor institution" that is a member or participant in the Securities Transfer Agents Medallion Program, the Stock Exchange Medallion Program or the New York Stock Exchange, Inc. Medallion Program. 9 33 EXHIBIT B GLOBAL SUBORDINATED FLOATING RATE NOTE REGISTERED PRINCIPAL AMOUNT NO. ________ $ CENTEX CORPORATION Subordinated Medium-Term Note, Series A Floating Rate Unless this Subordinated Note is presented by an authorized representative of The Depository Trust Company, a New York corporation, 55 Water Street, New York, New York ("DTC"), to Centex Corporation, a Nevada corporation (herein called the "Company," which term includes any successor person under the Indenture referred to on the reverse hereof) or its agent for registration of transfer, exchange or payment, and any Subordinated Note issued is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein. Unless and until it is exchanged in whole or in part for Subordinated Notes in certificated form, this Subordinated Note may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor of DTC or a nominee of such successor of DTC. The following summary of terms is subject to the provisions set forth below: 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
34 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 Subordinated Note has two or more Original Issue Dates, interest shall, beginning on each such Original Issue Date, begin to accrue for that part of the principal amount to which such Original Issue Date is applicable) specified above, or from and including the most recent Interest Payment Date specified above to which interest has been paid or duly provided for, as the case may be. Interest shall be paid in arrears monthly, quarterly, semiannually or annually as specified above under Interest Payment Dates, on each Interest Payment Date in each year and at Maturity, commencing on (a) the first such Interest Payment Date next succeeding the earliest Original Issue Date or Dates, or (b) if such Original Issue Date is after a Record Date and prior to the first Interest Payment Date, on the second Interest Payment Date, at a rate per annum equal to the Initial Interest Rate specified above until the initial Interest Reset Date specified above, and thereafter at a rate per annum determined in accordance with the provisions in the Indenture for calculating the Interest Rate for Subordinated Notes having the Interest Rate Basis specified above, until Maturity and the principal hereof is paid or made available for payment. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Subordinated Note is registered at the close of business on the Record Date specified above next preceding such Interest Payment Date; PROVIDED, HOWEVER, that if an Original Issue Date falls between a Record Date and the next Interest Payment Date, the first payment of interest with respect to such Original Issue Date will be made on the second Interest Payment Date subsequent to such Original Issue Date to the Person in whose name this Subordinated Note is registered at the close of business on the Record Date for such second Interest Payment Date; and PROVIDED, FURTHER, that interest payable on the Maturity Date or, if applicable, upon redemption, shall be payable to the Person to whom principal shall be payable. Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Record Date and shall be paid to the Person in whose name this Subordinated Note is registered at the close of business on a Record Date for the payment of such defaulted interest to be fixed by the Company, notice whereof shall be given to Subordinated Noteholders not less than fifteen calendar days prior to such Record Date. Payment of the principal of and any premium and interest on this Subordinated Note shall be made on or before 10:30 A.M., New York City time or such other time as shall be agreed upon between the Trustee and the Depositary, on the day on which such payment is due, by wire transfer into the account specified by the Depositary; PROVIDED, HOWEVER, that as a condition to the payment at the Maturity Date of any part of the principal and any applicable premium of this Global Subordinated Note, the Depositary shall surrender, or cause to be surrendered, this Global Subordinated Note to the Trustee. The Company will pay any administrative costs imposed by banks in connection with making payments by wire transfer, but not any tax, assessment or governmental charge imposed on the Holder of this Subordinated Note. 2 35 Under certain circumstances, this Global Subordinated Note is exchangeable in whole or from time to time in part for a definitive individual Subordinated Note or Subordinated Notes, with the same Original Issue Date or Dates, Maturity Date, Interest Rate Basis or Bases and redemption and other provisions as provided herein or in the Indenture. The Indenture and the Subordinated Notes shall be governed by, and construed in accordance with, the laws of the State of Texas. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS GLOBAL SUBORDINATED NOTE SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through a duly appointed and authorized authenticating agent, by manual signature of an authorized signatory, this Subordinated Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. 3 36 IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. Dated: CENTEX CORPORATION [SEAL] By: -------------------------------- Vicki A. Roberts Vice President and Treasurer ATTEST: - -------------------------------- Drew F. Nachowiak Assistant Secretary TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Subordinated Notes referred to in the within-mentioned Indenture. CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee By: -------------------------------- Authorized Signatory 4 37 [REVERSE OF GLOBAL SUBORDINATED FLOATING RATE NOTE] CENTEX CORPORATION SUBORDINATED FLOATING RATE MEDIUM-TERM NOTE, SERIES A This Global Subordinated Note is one of, and a global security which represents Subordinated Notes which are part of, a duly authorized issue of Subordinated Debt Securities of the Company (herein called the "Subordinated Notes"), issued and to be issued in one or more Series under an Indenture dated as of March 12, 1987 (herein, together with all indentures supplemental thereto, called the "Subordinated Indenture") between the Company and Chase Bank of Texas, National Association, as Trustee (formerly, Texas Commerce Bank National Association) (herein called the "Trustee," which term includes any successor Trustee under the Subordinated Indenture), to which Subordinated Indenture and all indentures supplemental thereto (including the Indenture Supplement dated as of November 1, 1998 which authorizes the Subordinated Notes) reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Subordinated Noteholders, and of the terms upon which the Subordinated Notes are, and are to be, authenticated and delivered. All terms used in this Subordinated Note which are defined in the Subordinated Indenture or in any indenture supplemental thereto but are not defined in this Subordinated Note shall have the meanings assigned to them in the Subordinated Indenture or in any indenture supplemental thereto. Each Subordinated Note shall be dated the date of its authentication by the Trustee. Each Subordinated Note shall also bear an Original Issue Date or Dates which with respect to this Global Subordinated Note (or any portion thereof) shall mean the date or dates of the original issue of the Subordinated Notes represented hereby as specified on the face hereof, and such Original Issue Date or Dates shall remain the same for all Subordinated Notes subsequently issued upon transfer, exchange or substitution of such original Subordinated Note (or such subsequently issued Subordinated Notes) regardless of their dates of authentication. The Subordinated Notes may bear different dates, mature at different times, bear interest at different rates, be subject to different redemption provisions, if any, and may otherwise vary, all as provided in the Subordinated Indenture. The indebtedness evidenced by the Subordinated Notes is, to the extent and in the manner provided in the Subordinated Indenture, subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness of the Company. As provided in the Subordinated Indenture, each holder of this Subordinated Note, by his acceptance hereof, agrees to and shall be bound by all the provisions of the Subordinated Indenture relating to such subordination and authorizes the Trustee to take such action in his behalf as may be necessary or appropriate to effectuate the subordination as provided in the Subordinated Indenture and appoints the Trustee his attorney-in-fact for any and all such purposes. Interest on this Subordinated Note will be payable on the Interest Payment Date or Interest Payment Dates as specified on the face hereof and, in either case, at Maturity. Unless otherwise specified on the face hereof, payments on this Subordinated Note with respect to any particular Interest Payment Date or the Maturity Date will include interest accrued from and including the applicable Original Issue Date, or from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, to but excluding the particular Interest Payment Date or the Maturity Date. Interest on this Subordinated Note shall be calculated for each day during such period by dividing the interest rate applicable to such day by 360, if the Interest Rate Basis specified on the face hereof is the CD Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the Federal Funds Rate, LIBOR or the Prime Rate, or by the actual number of days in the year, if the Interest Rate Basis specified on the face hereof is the CMT Rate or the Treasury Rate. Unless otherwise provided in an annex attached hereto, the Trustee, acting in the capacity of Calculation Agent, will calculate the Interest Rate on this Subordinated Note. Upon the request of any Holder of this Subordinated Note, the Trustee shall provide to such Holder the Interest Rate then in effect and, if then determined, the interest rate that will become effective on the next Interest Reset Date with respect to this Subordinated Note. Each such determination of an Interest Rate will be final and binding in the absence of manifest error. Unless otherwise specified in an annex attached hereto, if this Subordinated Note is an Amortizing Note, payments with respect to this Subordinated Note will be applied first to interest due and payable hereon and then to the reduction of the unpaid principal amount hereof. If this Subordinated Note is an Amortizing Note, a table setting forth 5 38 the schedule of dates and amounts of payments of principal of and interest on this Subordinated Note or the formula for the amortization of principal and/or interest is set forth in an annex attached to this Subordinated Note. All percentages resulting from any calculation with respect to this Subordinated Note will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point (with five one-millionths of a percentage point rounded upward) and all dollar or foreign or composite currency amounts used in or resulting from any such calculation with respect to this Subordinated Note will be rounded, in the case of United States dollars, to the nearest cent or, in the case of a foreign or composite currency, to the nearest unit (with one-half cent or unit being rounded upward). If an Interest Payment Date or Maturity for this Subordinated Note falls on a day that is not a Business Day, payment of principal, premium, if any, and interest to be made on such day with respect to this Subordinated Note will be made on the next succeeding day that is a Business Day with the same force and effect as if made on the due date, and no additional interest will be payable on the date of payment for the period from and after the due date as a result of such delayed payment. Notwithstanding the foregoing, in the case LIBOR is the applicable Interest Rate Basis with respect to this Subordinated Note and the next succeeding Business Day falls in the next succeeding calendar month, payment of interest to be made on such day with respect to this Subordinated Note will be made on the immediately preceding Business Day. This Subordinated Note will be redeemable at the option of the Company prior to its Stated Maturity Date only if an Initial Redemption Date is specified on the face hereof. If so specified, this Subordinated Note will be subject to redemption at the option of the Company on any date on and after such Initial Redemption Date in whole or from time to time in part in increments of $1,000 or any other integral multiple thereof, at the redemption prices specified in an annex attached to this Subordinated Note, plus accrued and unpaid interest to but excluding the date of redemption, but payments due with respect to this Subordinated Note prior to the date of redemption will be payable to the Holder of this Subordinated Note of record at the close of business on the relevant Record Date specified on the face hereof, all as provided in the Subordinated Indenture. Notice of such redemption shall be given by mailing by first-class mail a notice of such redemption not less than 20 nor more than 60 calendar days prior to the date fixed for redemption to the Holder of this Subordinated Note, in accordance with the provisions of the Subordinated Indenture. In the event of redemption of this Subordinated Note in part only, this Subordinated Note will be canceled and a new Subordinated Note or Subordinated Notes representing the unredeemed portion hereof will be issued in the name of the Holder hereof. This Subordinated Note is not subject to a sinking fund unless otherwise specified in an annex attached hereto. If so specified on the face of this Subordinated Note, (i) this Subordinated Note shall be subject to repayment, in whole or in part, prior to Stated Maturity Date at the option of the Holder on a certain date or dates and at a certain price or prices, plus accrued and unpaid interest to but excluding the date of payment; and/or (ii) the interest rate specified on the face hereof may be reset by the Company in accordance with a formula or otherwise on the Optional Interest Reset Date or Dates specified on the face hereof. In case an Event of Default shall have occurred and be continuing with respect to the Subordinated Notes, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Subordinated Indenture. The Subordinated Indenture provides that in certain events such declaration and its consequences may be waived by the Holders of a majority in aggregate principal amount of the Subordinated Notes then outstanding. An Event of Default with respect to the Subordinated Debt Security of any other Series issued under the Subordinated Indenture, including the failure to make any payment of principal or interest with respect thereto when and as due, will not be an Event of Default with respect to the Subordinated Notes. The Subordinated Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Subordinated Notes at the time outstanding, evidenced as in the Subordinated Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Subordinated Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Subordinated Notes; PROVIDED, HOWEVER, that no such supplemental indenture shall (i) extend the fixed maturity of any Subordinated Notes, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable on the redemption thereof, without the consent of the Holder of each Subordinated Note so affected, or (ii) 6 39 reduce the aforesaid percentage of Subordinated Notes, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of all Subordinated Notes then outstanding. It is also provided in the Subordinated Indenture that the Holders of a majority in aggregate principal amount of the Subordinated Notes at the time outstanding may on behalf of the Holders of all the Subordinated Notes waive any past default under the Subordinated Indenture and its consequences, except a default in the payment of the principal of or premium, if any, or interest on any of the Subordinated Notes. Any such consent or waiver by the Holder of this Global Subordinated Note (unless revoked as provided in the Subordinated Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Global Subordinated Note and of any Subordinated Note issued in exchange or substitution herefor, whether or not any notation of such consent or waiver is made upon this Global Subordinated Note. As set forth in, and subject to, the provisions of the Subordinated Indenture, no Holder of any Subordinated Notes will have any right to institute any proceeding with respect to the Subordinated Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of default in respect of the Subordinated Notes and of the continuance thereof, and unless the Holders of not less than 25 percent in aggregate principal amount of the Subordinated Notes then outstanding shall have made written request upon the Trustee, to institute such action or proceedings in its own name as Trustee hereunder and shall have furnished to the Trustee such reasonable indemnity as it may require, and the Trustee shall have failed to institute such proceeding within 60 calendar days; PROVIDED, HOWEVER, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of and any premium or interest on this Global Subordinated Note on or after the respective due dates expressed herein. THIS SUBORDINATED NOTE IS A GLOBAL SUBORDINATED NOTE REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL SUBORDINATED NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. If at any time the Depositary for this Global Subordinated Note notifies the Company that it is unwilling or unable to continue as Depositary for this Global Subordinated Note or if at any time the Depositary for this Global Subordinated Note shall no longer be registered as a clearing agency under the Securities Exchange Act of 1934, as amended, or any successor statute or regulation, the Company may appoint a successor Depositary with respect to this Global Subordinated Note. If (A) a successor Depositary for this Global Subordinated Note is not appointed by the Company within 60 calendar days after the Company receives such notice or becomes aware of such ineligibility, or (B) any Subordinated Notes are represented by this Global Subordinated Note at a time when an Event of Default with respect to the Subordinated Notes shall have occurred and be continuing, then in each case the Company's election to issue this Subordinated Note in global form shall no longer be effective with respect to this Global Subordinated Note and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Subordinated Notes in exchange for this Global Subordinated Note, shall authenticate and make available for delivery, individual Subordinated Notes of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of this Global Subordinated Note in exchange for this Global Subordinated Note. If agreed by the Company and the Depositary with respect to Subordinated Notes issued in the form of this Global Subordinated Note, the Depositary for such Global Subordinated Note shall surrender this Global Subordinated Note in exchange in whole or in part for individual Subordinated Notes of like tenor and terms in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and the Trustee shall authenticate and make available for delivery, without a service charge, (1) to each Person specified by such Depositary, a new Subordinated Note or Subordinated Notes of like tenor and terms, and of any authorized denominations as requested by such Person in aggregate principal amount equal to and in exchange for the beneficial interest of such Person in this Global Subordinated Note, and (2) to such Depositary a new Global Subordinated Note of like tenor and terms and in a denomination equal to the difference, if any, between the principal amount of this Global Subordinated Note and the aggregate principal amount of Subordinated Notes delivered to Holders thereof. 7 40 Under certain circumstances specified in the Subordinated Indenture, the Depositary may be required to surrender any two or more Global Subordinated Notes which have identical terms (but which may have differing Original Issue Dates) to the Trustee, and the Company shall execute and the Trustee shall authenticate and deliver to, or at the direction of, the Depositary a Global Subordinated Note in principal amount equal to the aggregate principal amount of, and with all terms identical to, the Global Subordinated Notes surrendered to the Trustee, and such new Global Subordinated Note shall indicate each applicable Original Issue Date and the principal amount applicable to each such Original Issue Date. No reference herein to the Subordinated Indenture and no provision of this Global Subordinated Note or of the Subordinated Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Global Subordinated Note at the times, places and rates, and in the coin or currency, herein prescribed. The Subordinated Indenture contains provisions for the satisfaction and discharge of the Subordinated Indenture upon compliance by the Company with certain conditions specified therein, which provisions apply to this Subordinated Note. The Company, the Trustee, any paying agent and any Subordinated Debt Security Registrar (as defined in the Subordinated Indenture) for the Subordinated Notes may deem and treat the Holder hereof as the absolute owner of this Global Subordinated Note (whether or not this Global Subordinated Note shall be overdue and notwithstanding any notation of ownership or other writing hereon made by anyone other than the Company or any such Subordinated Debt Security Registrar), for the purpose of receiving payment hereof or on account hereof and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any such Subordinated Debt Security Registrar shall be affected by any notice to the contrary. No recourse shall be had for the payment of the principal of, or premium, if any, or interest on, this Global Subordinated Note, or for any claim based hereon or otherwise in respect hereof, or based on or in respect of the Subordinated Indenture, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. 8 41 OPTION TO ELECT REPAYMENT The undersigned hereby irrevocably request(s) and instruct(s) the Company to repay this Subordinated Note (or portion hereof specified below) pursuant to its terms at a price equal to 100% of the principal amount to be repaid, together with unpaid interest accrued hereon to the Repayment Date, to the undersigned, at _____________________________________________. If less than the entire principal amount of this Subordinated Note is to be repaid, specify the portion hereof (which shall be increments of ____________) which the holder elects to have repaid and specify the denomination or denominations (which shall be an authorized denomination) not less than ________ of the Subordinated Notes to be issued to the Holder for the portion of this Subordinated Note not being repaid (in the absence of any such specification, one such Subordinated Note will be issued for the portion not to be repaid). Principal Amount to be Repaid: $ - --------------------------------------- --------------- CUSIP Number or other identifier: Date: -------------------------- ---------------------------------------- NOTICE: The signature(s) to this assignment must correspond with the name(s) as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever. The signature(s) must be guaranteed by an "eligible guarantor institution" that is a member or participant in the Securities Transfer Agents Medallion Program, the Stock Exchange Medallion Program or the New York Stock Exchange, Inc. Medallion Program. Notice: The signature(s) on this Option to Elect Repayment must correspond with the name(s) as written upon the face of this Subordinated Note in every particular, without alteration or enlargement or any change whatsoever. 9 42 ABBREVIATIONS The following abbreviations, when used in the inscription of the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT - ______Custodian_______ TEN ENT - as tenants by the entireties (Cust) (Minor) Under Uniform Gifts JT TEN - as joint tenants with right of to Minors Act survivorship and not as tenants in common ----------------------- State
Additional abbreviations may also be used though not in the above list. --------------------- FOR VALUE RECEIVED the undersigned hereby sell(s) assign(s) and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE - ------------------------------------- - ------------------------------------- - -------------------------------------------------------------------------------- Please print or typewrite name and address including postal zip code of assignee - -------------------------------------------------------------------------------- the within Subordinated Note and all rights thereunder, hereby irrevocably constituting and appointing _______________________________________________ attorney to transfer said Subordinated Note on the books of the Company, with full power of substitution in the premises. Dated: -------------------------- ---------------------------------------- NOTICE: The signature(s) to this assignment must correspond with the name(s) as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever. The signature(s) must be guaranteed by an "eligible guarantor institution" that is a member or participant in the Securities Transfer Agents Medallion Program, the Stock Exchange Medallion Program or the New York Stock Exchange, Inc. Medallion Program. -----END PRIVACY-ENHANCED MESSAGE-----