-----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, NshiGO0s3YwALu/drzM4zFEU7cZME2o6aqNX11EmEnblUBypiT/SED/iWioNTNfc yi6hRj1FuRyvXfRgkzj1Og== 0000950134-99-007846.txt : 19990830 0000950134-99-007846.hdr.sgml : 19990830 ACCESSION NUMBER: 0000950134-99-007846 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19990817 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990827 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: 99701349 BUSINESS ADDRESS: STREET 1: P O BOX 199000 STREET 2: 2728 N HARWOOD CITY: DALLAS STATE: TX ZIP: 75201 BUSINESS PHONE: 2145596500 MAIL ADDRESS: STREET 1: PO BOX 199000 STREET 2: 2728 N HARWOOD CITY: DALLAS STATE: TX ZIP: 75201 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: August 17, 1999 (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 "Series A 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 commenced its $200,000,000 Senior Medium-Term Note Program, Series A, which was amended on November 24, 1998 to allow the Registrant to offer $125,000,000 (the balance of the program) aggregate principal amount of senior and/or subordinated fixed and floating rate Medium-Term Notes, Series A, covered by the Series A Registration Statements. Of the original $200,000,000 Medium-Term Program, Series A, $192,000,000 aggregate principal amount of notes have been issued. Reference is hereby made to the Registrant's Registration Statement on Form S-3 (File No. 333-72893), filed with the Commission on February 24, 1999 and declared effective thereby on August 9, 1999 (the "Series B Registration Statement"), pursuant to which the Registrant registered $250,000,000 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 August 17, 1999, the Registrant entered into a Distribution Agreement (the "Distribution Agreement") with Banc One Capital Markets, Inc., Banc of America Securities LLC, Chase Securities Inc., Credit Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated and Warburg Dillon Read LLC (collectively, the "Agents"), in connection with the proposed public offering by the Agents of $250,000,000 aggregate principal amount of senior and/or subordinated fixed and floating rate Medium-Term Notes, Series B (the "Debt Securities"), covered by the Series B Registration Statement. The Distribution Agreement in the form in which it was executed is filed herewith as Exhibit 1.1. The Registrant has previously entered into an Indenture dated as of October 1, 1998 (the "Senior Indenture"), with Chase Bank of Texas, National Association, as trustee (the "Trustee"), with respect to the senior debt securities (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 Event: October 21, 1998) filed October 30, 1998, and is incorporated herein by reference. Pursuant to the Senior Indenture, the Registrant and the Trustee entered into an Indenture Supplement No. 2 dated as of August 1, 1999 (the "Senior Indenture Supplement"), providing for the issuance of the Senior Debt Securities. A copy of the Senior Indenture Supplement in the form in which it was executed is filed herewith as Exhibit 4.2. -2- 3 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 4.5 to the Series B Registration Statement, and is incorporated herein by reference. Pursuant to the Subordinated Indenture, the Registrant and the Trustee entered into an Indenture Supplement No. 5 dated as of August 1, 1999 (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. Pursuant to the Distribution Agreement, on August 19, 1999, the Registrant agreed to sell $150,000,000 aggregate principal amount of the Registrant's Medium-Term Notes, Series B, due August 25, 2000, which bear interest at a floating rate based on the London Interbank Offered Rate (the "$150,000,000 Notes"). The $150,000,000 Notes, which were placed by Banc One Capital Markets Inc., were issued on August 25, 1999. The net proceeds to the Registrant from the sale of the $150,000,000 Notes were $149,775,000. -3- 4 Item 7. Financial Statements and Exhibits. (c) Exhibits Exhibit No. Description ----------- ----------- 1.1 Distribution Agreement dated August 17, 1999, between Centex Corporation and Banc One Capital Markets, Inc., Banc of America Securities LLC, Chase Securities Inc., Credit Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated and Warburg Dillon Read LLC. 4.1 Indenture dated October 1, 1998 between Centex Corporation and Chase Bank of Texas, National Association (filed as Exhibit 4.1 to the Registrant's Form 8-K dated October 21, 1998 and incorporated herein by reference) 4.2 Indenture Supplement No. 2 dated as of August 1, 1999 with respect to the Senior Debt Securities, between Centex Corporation and Chase Bank of Texas, National Association. 4.3 Indenture dated March 12, 1987 between Centex Corporation and Chase Bank of Texas, National Association (formerly, Texas Commerce Bank National Association) (filed as Exhibit 4.5 to the Registrant's Registration Statement on Form S-3 (SEC File No. 333-65217) and incorporated herein by reference) 4.4 Indenture Supplement No. 5 dated as of August 1, 1999 with respect to the Subordinated Debt Securities, between Centex Corporation and Chase Bank of Texas, National Association (formerly, Texas Commerce Bank National Association) 12.1 Computation of Ratio of Earnings to Fixed Charges -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 August 24, 1999 By: /s/ Raymond G. Smerge ------------------------------------------------- Raymond G. Smerge Executive Vice President, Chief Legal Officer and Secretary 6 INDEX TO EXHIBITS
Exhibit No. Description ----------- ----------- 1.1 Distribution Agreement dated August 17, 1999, between Centex Corporation and Banc One Capital Markets, Inc., Banc of America Securities LLC, Chase Securities Inc., Credit Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated and Warburg Dillon Read LLC. 4.1 Indenture dated October 1, 1998 between Centex Corporation and Chase Bank of Texas, National Association (filed as Exhibit 4.1 to the Registrant's Form 8-K dated October 21, 1998 and incorporated herein by reference) 4.2 Indenture Supplement No. 2 dated as of August 1, 1999 with respect to the Senior Debt Securities, between Centex Corporation and Chase Bank of Texas, National Association. 4.3 Indenture dated March 12, 1987 between Centex Corporation and Chase Bank of Texas, National Association (formerly, Texas Commerce Bank National Association) (filed as Exhibit 4.5 to the Registrant's Registration Statement on Form S-3 (SEC File No. 333-65217) and incorporated herein by reference) 4.4 Indenture Supplement No. 5 dated as of August 1, 1999 with respect to the Subordinated Debt Securities, between Centex Corporation and Chase Bank of Texas, National Association (formerly, Texas Commerce Bank National Association) 12.1 Computation of Ratio of Earnings to Fixed Charges
EX-1.1 2 DISTRIBUTION AGREEMENT DATED AUGUST 17, 1999 1 EXHIBIT 1.1 FINAL CENTEX CORPORATION $250,000,000 Senior Medium-Term Notes, Series B Subordinated Medium-Term Notes, Series B Due 9 Months or More from Date of Issue DISTRIBUTION AGREEMENT August 17, 1999 Banc One Capital Markets, Inc. 1 First National Plaza Chicago, IL 60670 Banc of America Securities LLC 100 North Tyron Street Mail Code NC1-007-07-01 Charlotte, N.C. 28255 Chase Securities Inc. 270 Park Avenue New York, N.Y. 10017 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 Warburg Dillon Read LLC 677 Washington Blvd. Stamford, CT 06901 Ladies and Gentlemen: Centex Corporation, a Nevada corporation (the "Company"), confirms its agreement with each of you (individually, an "Agent" and collectively, the "Agents") with respect to the issue 2 and sale from time to time by the Company of its Senior Medium-Term Notes, Series B (the "Senior Notes") and its Subordinated Medium-Term Notes, Series B (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 second Supplemental Indenture thereto dated as of August 1, 1999, and the Subordinated Notes will be issued under a Subordinated Indenture (the "Subordinated Indenture") dated as of March 12, 1987, as supplemented by a fifth Supplemental Indenture thereto dated as of August 1, 1999, as each may be amended, supplemented or modified from time to time. The Senior Indenture and the Subordinated Indenture are individually referred to herein as an "Indenture" and collectively referred to herein as the "Indentures". The Indentures are each between the Company and Chase Bank of Texas, National Association (formerly Texas Commerce Bank National Association), as Trustee (the "Trustee"). As of the date hereof, the Company has authorized the issuance and sale of up to $250,000,000 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 2 3 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 otherwise specify, other than by an amendment or supplement which relates exclusively to an offering of debt securities other than Notes) or there is filed with the SEC any document that is incorporated by reference into the Registration Statement or the Prospectus (each of the times referenced above being referred to as a "Representation Date"), as follows (it being understood that such representations, warranties and agreements shall be deemed to relate to the Registration Statement and the Prospectus, each as amended or supplemented to each such date): (a) The Company has filed with the SEC a registration statement (File No. 333-72893), as amended by Amendments Nos. 1, 2, 3 and 4, in respect of the Notes in the form heretofore delivered or to be delivered to each Agent (the various parts of such registration statement, including Amendments Nos. 1, 2, 3 and 4, the Prospectus, all exhibits thereto (other than the Statements of Eligibility under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") of a corporation designated to act as Trustee, on Form T-1), each as amended, at the time such part became effective, being hereinafter collectively called the "Registration Statement") and the Registration Statement (and any further registration statements which may be filed by the Company for the purpose of registering additional Notes, including any registration statement filed pursuant to Rule 462(b) of the regulations to the Securities Act) in such form has been declared effective by the SEC and no stop order suspending the effectiveness of the Registration Statement as amended has been issued and no proceeding for that purpose has been initiated or threatened by the SEC, and any requests on the part of the SEC for additional information have been complied with (any preliminary prospectus included in the Registration Statement as amended being hereinafter called a "Preliminary Prospectus;" the prospectus relating to 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 the Registration Statement or any part thereof shall be deemed to refer to and include any documents filed after the date of the Registration Statement or any such part thereof under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in such amendment or supplement; and any reference to the Prospectus, as amended or supplemented, shall be deemed to refer to the Prospectus as amended or supplemented in relation to the applicable Notes in the form in which it is first filed, or transmitted for filing, with the SEC pursuant to Rule 424 under the Securities Act, including any documents incorporated by reference therein as of the date of such filing or transmission); 3 4 (b) The documents incorporated by reference in the Registration Statement, when they were filed or hereafter are filed with the SEC, conformed or when so filed will conform, in all material respects to the requirements of the Exchange Act and the rules and regulations of the SEC thereunder; and any further documents so filed and incorporated by reference in the Prospectus, when such documents are filed with the SEC, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the SEC thereunder; (c) Each part of the Registration Statement and the Prospectus conformed, and as of the applicable Representation Date will conform, and any amendments or supplements to the Registration Statement or the Prospectus will conform, on the date of filing thereof with the SEC, in all material respects to the requirements of the Securities Act and the Trust Indenture Act, as applicable, and the rules and regulations of the SEC thereunder; the Registration Statement and any amendment thereto, as of the applicable effective date, did not and at each time thereafter at which any amendment to the Registration Statement becomes effective and any Annual Report on Form 10-K is filed by the Company with the SEC as of each Representation Date, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus and any supplement thereto, as of the applicable filing date, did not and as of each Representation Date will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this section shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Agent expressly for use in the Registration Statement or Prospectus. Each Preliminary Prospectus and the Prospectus delivered to the Agents for use in connection with the offering of the Notes was identical to the electronically transmitted versions thereof filed with the SEC pursuant to EDGAR, except to the extent permitted by Regulation S-T; (d) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, resulting in an adverse effect on the business, assets, financial position or prospects of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise set forth or contemplated in the Prospectus: (i) there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries; (ii) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole, 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; 4 5 (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 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; 5 6 (i) The issue and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, the Remarketing Agreement between the Company and any remarketing agent (the "Remarketing Agreement"), the Indentures, this Agreement and any Terms Agreement, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Articles of Incorporation, as amended or restated, or the Bylaws of the Company or any statute or order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the other transactions contemplated by this Agreement or the Remarketing Agreement or any Terms Agreement or the Indentures, except such as have been, or will have been prior to any delivery of the Notes, obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Agents; (j) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (k) Arthur Andersen LLP, who have certified certain financial statements of the Company and its subsidiaries, are independent public accountants as required by the Securities Act and the rules and regulations of the SEC thereunder; (l) The Company has no knowledge of any default in any material obligation to be performed by any party to any agreement to which it or any of its subsidiaries is a party, which default or defaults in the aggregate would have a material adverse effect upon the business, assets, financial position, or prospects of the Company and its subsidiaries, considered as a whole; (m) The consolidated financial statements of the Company and its subsidiaries, including accompanying notes, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Securities Act and fairly present the consolidated financial position and the consolidated results of the operations of the Company and its subsidiaries at the respective dates and for the 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 6 7 information and statistical data set forth in the Prospectus under the caption "Summary of Selected Financial Data" are fairly presented and prepared on a basis consistent with such consolidated financial statements or the books and records of the Company, as the case may be, unless otherwise stated in the Prospectus; (n) Except as described in the Prospectus, the Company and each of its subsidiaries have all necessary licenses, certificates, consents, permits, authorizations, approvals, rights and orders of and from all governmental agencies or bodies having jurisdiction over the Company or any of its subsidiaries to own their respective properties and conduct their respective businesses as described in the Prospectus, the failure to possess or the failure to operate in compliance with which would have a material adverse effect on the business of the Company and its subsidiaries, taken as a whole, and the Company has received no notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole; (o) This Agreement has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, and any Terms Agreement with respect to the Notes, when executed and delivered by the Company, will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject, in each case, as to enforcement, to bankruptcy, insolvency, reorganization, and other laws of general applicability relating to or affecting creditors' rights, and to general equity principles, and except to the extent that rights of indemnification hereunder may be limited by applicable laws or equity principles; (p) Except as described in the Prospectus, each of the Company and its subsidiaries owns or possesses all of the patents, trademarks, service marks, trade names, copyrights and licenses and rights with respect to the foregoing, necessary for the present conduct of its business, without any known conflict with the rights of others, the result of which conflict would materially and adversely affect the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole; (q) There are no contracts, indentures, mortgages, loan agreements, notes, bonds, debentures, other evidences of indebtedness, leases or other agreements or instruments of the Company of a character required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or referred to or filed as required; (r) No labor disturbance exists with the employees of the Company or any of its subsidiaries, or, to the best of the Company's knowledge, is imminent, that would result in a material adverse effect upon the Company and its subsidiaries, taken as a whole, and the Company has not received notice of any existing or imminent labor disturbance by the employees of any of its principal suppliers, that might reasonably be expected to materially adversely affect the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole; and 7 8 (s) The conditions to the use of a registration statement on Form S-3 under the Securities Act, as set forth in the General Instructions to Form S-3, have been satisfied with respect to the Company and the Registration Statement and Prospectus; (t) The Remarketing Agreement, if applicable, has been duly and validly authorized, executed and delivered by the Company and, assuming the Remarketing Agreement has been duly authorized, executed and delivered by the Remarketing Agent (as defined in the Prospectus), will be a valid and legally binding agreement of the Company; and (u) Neither the Company nor any of its subsidiaries is required to be registered under the Investment Company Act of 1940, as amended. Any certificate signed by any director or officer of the Company and delivered to the Agents or their counsel in connection with an offering of Notes to an Agent as principal or through an Agent as agent shall be deemed a representation and warranty by the Company to such Agent as to the matters covered thereby on the date of such certificate and at each Representation Date subsequent thereto. 2. Purchases as Principal; Solicitations as Agent. (a) No Agent shall have any obligation to purchase Notes from the Company as principal, but an Agent may agree from time to time to purchase Notes as principal. Each sale of Notes to an Agent as principal shall be made in accordance with the terms of this Agreement, except as otherwise agreed by such Agent and the Company, and, if requested by such Agent, the Company will enter into a Terms Agreement that will provide for the sale of such Notes to and the purchase thereof by such Agent. Each Terms Agreement will be either (i) substantially in the form of Exhibit A (in the case of Senior Notes) or Exhibit B (in the case of Subordinated Notes) hereto, (ii) in the form of an exchange of any form of written telecommunication between an Agent and the Company or (iii) an oral agreement between an Agent and the Company confirmed in writing by such Agent to the Company. Each agreement by an Agent to purchase Notes as principal (whether or not set forth in a Terms Agreement) shall specify the principal amount of Notes to be purchased by such Agent pursuant thereto, the maturity date of such Notes, the price to be paid to the Company for such Notes, the interest rate and interest rate formula, if any, applicable to such Notes and any other terms of such Notes. Each such agreement shall also specify any requirement for officers' certificates, opinions of counsel and letters from the independent public accountants to the Company pursuant to Sections 5 and 6 hereto. Each Terms Agreement shall specify the time and place of delivery of and payment for such Notes. With respect to each sale of Notes to an Agent as principal that is not made pursuant to a Terms Agreement, the procedural details relating to the issue and delivery of such Notes and the payment therefor shall be as set forth in the Administrative Procedures (as hereinafter defined). 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 8 9 allow all or any portion of the discount received in connection with such purchases from the Company to such brokers and dealers. (b) If agreed upon by an Agent and the Company, such Agent, acting solely as agent for the Company and not as principal, will solicit purchasers of the Notes. In connection with the Agents' actions as agents hereunder, each Agent agrees to use reasonable best efforts to solicit offers to purchase Notes from the Company upon the terms and conditions set forth in the Prospectus (and any supplement thereto) and in the Administrative Procedures. In soliciting offers to purchase the Notes as agents, each Agent is acting solely as an agent for the Company, and not as a principal, and does not assume any obligation toward or relationship of agency or trust with any purchaser of Notes. Each Agent shall make reasonable efforts to assist the Company in obtaining performance by each purchaser whose offer to purchase Notes has been solicited by such Agent and accepted by the Company, but no Agent shall have any liability to the Company in the event any such purchase is not consummated for any reason. If the Company shall default in its obligations to deliver Notes to a purchaser whose offer it has accepted, the Company shall hold each Agent harmless against any loss, claim, damage or liability arising from or as a result of such default and shall, in particular, pay to each Agent the commission each Agent would have received had such sale been consummated. The Company may appoint additional agents in connection with the offering of the Notes; provided that (i) the Company promptly notifies each Agent of such appointment and (ii) the commission paid to any such additional agent with respect to the sale of Notes by the Company as a result of a solicitation made by such additional agent is the same as that percentage specified below of the aggregate principal amount of such Notes sold by the Company; and provided further that, unless the appointment of such additional agent is expressly limited to the solicitation of offers to purchase a specified principal amount of Notes on specified terms, such additional agent enters into an agreement with the Company making such agent an Agent under this Agreement or enters into an agreement with the Company on terms which are substantially similar to those contained in this Agreement, which agreement shall include appropriate changes to reflect the arrangements between the Company and such additional agent. The Company may from time to time offer Notes for sale otherwise than through an Agent. No Agent is authorized to appoint sub-agents with respect to Notes sold through an Agent as agent. The Company reserves the right, in its sole discretion, to instruct the Agents to suspend at any time, for any period of time or permanently, the solicitation of offers to purchase Notes (other than Notes held by the Agents that were purchased from the Company as principal). As soon as practicable after receipt of instructions from the Company, each Agent will forthwith suspend solicitations of offers to purchase Notes from the Company until such time as the Company has advised the Agents that such solicitation may be resumed. While such solicitation is suspended, the Company shall not be required to deliver any certificates, opinion or letter in accordance with Sections 6(a), (b) and (c); provided, however, that if the Registration Statement or the Prospectus is amended or supplemented during the period of suspension (other than by an 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 9 10 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. 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 by an Agent shall be purchased, and any Notes the placement of which an Agent arranges as agent shall be placed by such Agent, in reliance on the representations, warranties, agreements and covenants of the Company contained herein and on the terms and conditions and in the manner provided herein. 10 11 (d) The purchase price, interest rate or formula, maturity date and other terms of the Notes (as applicable) shall be agreed upon by the Company and each Agent and specified in a pricing supplement to the Prospectus (each, a "Pricing Supplement") to be prepared in connection with each sale of Notes. Except as otherwise specified in the applicable Pricing Supplement, the Notes will be issued in denominations of U.S. $1,000, except for Remarketed Notes which will be issued in minimum denominations of $100,000, or any larger amount that is an integral multiple thereof. Each Agent and the Company agree to perform the respective duties and obligations specifically provided to be performed in the Medium-Term Notes Administrative Procedures (attached hereto as Exhibit C) (the "Administrative Procedures"), as amended from time to time. The Administrative Procedures may be amended only by written agreement of the Company, each Agent and the Trustee. The Company will furnish to the Trustee a copy of the Administrative Procedures as from time to time in effect. The Company agrees to cause the Trustee to agree to perform the duties and obligations specifically provided to be performed by the Trustee in such Administrative Procedures. 3. Agreements. The Company agrees with each Agent that: (a) The Company will notify each Agent immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the SEC for filing of any amendment or supplement to the Prospectus or any document to be filed pursuant to the Exchange Act which will be incorporated by reference in the Prospectus (other than any amendment, supplement or document relating solely to securities other than the Notes), (iii) the receipt of any comments from the SEC with respect to the Registration Statement or the Prospectus, (iv) any request by the SEC for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. (b) The Company will give each Agent notice of its intention to file or prepare any additional registration statement with respect to the registration of additional Notes, any amendment to the Registration Statement or any amendment or supplement to the Prospectus (other than an amendment or supplement providing solely for a change in the interest rates or formula applicable to the Notes or relating solely to the issuance and/or offering of securities other than the Notes), whether by the filing of documents pursuant to the Exchange Act, the Securities Act or otherwise, and will furnish each Agent with copies of any such amendment or supplement or other documents proposed to be filed or prepared a reasonable time in advance of such proposed filing or preparation, as the case may be, and will not file any such amendment or supplement or other documents in a form to which an Agent or its counsel shall reasonably object. (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 11 12 the Agents are required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Notes. (d) The Company will prepare, with respect to any Notes to be sold to or through an Agent pursuant to this Agreement, a Pricing Supplement with respect to such Notes in a form previously approved by such Agent and will file such Pricing Supplement pursuant to Rule 424(b)(3) under the Securities Act not later than the close of business of the SEC on the second business day after the date on which such Pricing Supplement is first used. (e) Except as otherwise provided in subsection (m) of this Section, if at any time during the term of this Agreement any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of your counsel or counsel for the Company, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the Securities Act or the regulations to the Securities Act, immediate notice shall be given, and confirmed in writing, to each Agent to cease the solicitation of offers to purchase the Notes in such Agent's capacity as agent and to cease sales of any Notes an Agent may then own as principal pursuant to an agreement by such Agent to purchase Notes as principal, and the Company will promptly prepare and file with the SEC such amendment or supplement, whether by filing documents pursuant to the Exchange Act, the Securities Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements. (f) Except as otherwise provided in subsection (m) of this Section, if reasonably requested by an Agent, on or prior to the date on which there shall be released to the general public interim financial statement information related to the Company with respect to each of the first three quarters of any fiscal year or preliminary financial statement information with respect to any fiscal year, the Company shall 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. 12 13 (h) The Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering each twelve-month period beginning, in each case, not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in such Rule 158) of the Registration Statement with respect to each sale of Notes. (i) The Company will endeavor, in cooperation with the Agents, to qualify the Notes for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Agents may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Notes; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Notes have been qualified as above provided. The Company will promptly advise the Agents of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any such state or jurisdiction or the initiating or threatening of any proceeding for such purpose. (j) The Company, during the period when a Prospectus is required to be delivered under the Securities Act or the Exchange Act, will file promptly all documents required to be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act within the time periods prescribed by the Exchange Act and the Exchange Act Regulations. (k) During the term of this Agreement, the Company shall furnish to the Agents such relevant documents and certificates of officers of the Company relating to the business, operations and affairs of the Company, the Registration Statement, the Prospectus, any amendments or supplements thereto, the Indentures, the Notes, this Agreement, any Terms Agreement, the Administrative Procedures and the performance by the Company of its obligations hereunder or thereunder as the Agents may from time to time reasonably request and shall notify the Agents promptly in writing of any change in the rating accorded any of the Company's debt securities by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act or the public announcement by any nationally recognized statistical rating organization that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company. (l) Between the date of any agreement by an Agent to purchase Notes as principal and the Settlement Date with respect to such agreement, the Company will not, without such Agent's prior consent, 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 13 14 agreement by such Agent to purchase Notes as principal, to the time the Company shall determine that solicitation of purchases of the Notes should be resumed or shall subsequently enter into a new agreement with such Agent for such Agent to purchase Notes as principal. 4. Payment of Expenses. The Company covenants and agrees with the Agents that the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement including: (i) the preparation and filing of the Registration Statement and all amendments thereto and the Prospectus and any amendments or supplements thereto; (ii) the preparation, filing and reproduction of this Agreement and any Terms Agreements; (iii) the preparation, printing, issuance and delivery of the Notes, including any fees and expenses relating to the use of book-entry notes; (iv) the fees and disbursements of the Company's accountants and counsel, of the Trustee and its counsel, and of any Calculation Agent; (v) The reasonable fees and disbursements of your counsel incurred in connection with the establishment of the program relating to the Notes and incurred from time to time in connection with the transactions contemplated hereby; (vi) the qualification of the Notes under state securities laws in accordance with the provisions of Section 3(h) hereof, including filing fees and the reasonable fees and disbursements of your counsel in connection therewith and in connection with the preparation of any Blue Sky Survey and any Legal Investment Survey; (vii) the preparation and delivery to each Agent in quantities as hereinabove stated of copies of the Registration Statement and any amendments thereto, and of the Prospectus and any amendments or supplements thereto, and the delivery by each Agent of the Prospectus and any amendments or supplements thereto in connection with solicitations or confirmations of sales of the Notes; (viii) the preparation, reproducing and delivery to each Agent of copies of the Indentures and all supplements and amendments thereto; (ix) any fees charged by rating agencies for the rating of the Notes; (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 14 15 (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 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 or Texas by either federal, New York State or Texas authorities or declaration of a banking moratorium by the relevant authorities in the country or countries of origin of foreign currency or currencies in which the Notes are denominated or payable or (D) outbreak or escalation of hostilities or 15 16 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 L.L.P, 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 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 16 17 its jurisdiction of incorporation or organization, as the case may be; 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 (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 17 18 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 court or 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; 18 19 (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 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 19 20 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 LLP, 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. (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 20 21 course of business), or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your reasonable judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or delivery of the Notes on the terms and in the manner contemplated in the Prospectus, as amended or supplemented; (g) Subsequent to the date of any Terms Agreement relating to the Notes, the rating accorded 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 to any of the Company's debt securities shall not have been lowered nor shall any such rating agency have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company; (h) Subsequent to the date of any Terms Agreement relating to the Notes, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on or by, as the case may be, the New York Stock Exchange; (ii) a general moratorium on commercial banking activities in New York or Texas declared by either federal or New York State or Texas 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. 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 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 21 22 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. 22 23 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 such Agent expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto). (c) General. Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying 23 24 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 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 24 25 incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Agent shall be required to contribute any amount in excess of the amount by which the total price at which the Notes referred to in paragraph (a) above that were offered and sold to the public through such Agent exceeds the amount of any damages that such Agent would have otherwise been required to pay by reason of such untrue or allegedly untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Each Agent's obligation to contribute pursuant to this Section 8 is several, in proportion to the respective principal amounts of Notes referred to in paragraph (a) above purchased or sold by each Agent, and not joint. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. 9. Termination. (a) This Agreement may be terminated at any time either by the Company or by an Agent with respect to such Agent upon the giving of 30 days' written notice of such termination to the other party hereto. The termination of this Agreement shall not require termination of any agreement by an Agent to purchase Notes as principal, and the termination of any such agreement shall not require termination of this Agreement. (b) An Agent may terminate any agreement to purchase Notes from the Company as principal, immediately upon notice to the Company, at any time prior to the Settlement Date relating thereto, if (i) there has been, since the date of such agreement or since the respective dates as of which information is given in the Prospectus, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, or (ii) a stop order suspending the effectiveness of the Registration Statement shall have been issued or a proceeding for that purpose shall have been initiated or threatened by the SEC, or (iii) there shall have occurred any (A) suspension or material limitation of trading generally on or by, as the case may be, the New York Stock Exchange, the American Stock Exchange, 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 25 26 possible negative implications, its rating of any debt securities of the Company, or (v) there shall have come to an Agent's attention any facts that would cause such Agent to believe that the Prospectus, at the time it was required to be delivered to a purchaser of Notes, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time of such delivery, not misleading. As used in this Section, the term "Prospectus" means the Prospectus in the form first provided to each Agent for use in confirming sales of the related Notes. (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. 26 27 11. Representations and Indemnities to Survive. The respective indemnity and contribution agreements, representations, warranties and other statements of the Company, its officers and each Agent set forth in or made pursuant to this Agreement or any agreement by an Agent to purchase Notes as principal will remain in full force and effect, regardless of any termination of this Agreement or any such agreement, any investigation made by or on behalf of an Agent or the Company or any of the officers, directors or controlling persons referred to in Sections 7 and 8 and delivery of and payment for the Notes. 12. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to each Agent, will be mailed, delivered or telefaxed and confirmed to each Agent at: Banc One Capital Markets, Inc. 1 First National Plaza Chicago, IL 60670 Attention: Corporate Securities Structuring Telephone: 312-732-2017 Telecopy: 312-732-4172 Banc of America Securities LLC 100 North Tyron Street Mail Code NC1-007-07-01 Attention: Product Management/Medium Term Notes Telephone: 704-386-7800 Telecopy: 704-388-9939 Chase Securities Inc. 270 Park Avenue 8th Floor New York, N.Y. 10017 Attention: Medium-Term Note Desk Telephone: 212-834-4421 Telecopy: 212-834-6081 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 27 28 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 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. 28 29 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. BANC ONE CAPITAL MARKETS, INC. By ----------------------------- Title: BANC OF AMERICA SECURITIES LLC By ----------------------------- Title: CHASE SECURITIES INC. By ----------------------------- Title: CREDIT SUISSE FIRST BOSTON CORPORATION By ----------------------------- Title: MORGAN STANLEY & CO. INCORPORATED By ----------------------------- Title: WARBURG DILLON READ LLC By ----------------------------- Title: 29 30 EXHIBIT A CENTEX CORPORATION SENIOR MEDIUM-TERM NOTES, SERIES B TERMS AGREEMENT 19 ---- --- Centex Corporation 2728 North Harwood Street Dallas, Texas 75201 Attention: Re: Distribution Agreement dated August 17, 1999 (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, o LIBOR Reuters o 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: 30 31 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 August 17, 1999, 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: 31 32 EXHIBIT B CENTEX CORPORATION SUBORDINATED MEDIUM-TERM NOTES, SERIES B TERMS AGREEMENT 19 ---- --- Centex Corporation 2728 North Harwood Street Dallas, Texas 75201 Attention: Re: Distribution Agreement dated August 17, 1999 (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, o LIBOR Reuters o 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: 32 33 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 August 17, 1999, 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: 33 34 EXHIBIT C ADMINISTRATIVE PROCEDURES 34 35 SCHEDULE I SUBSIDIARIES OF CENTEX CORPORATION THAT ARE NOT DIRECTLY OR INDIRECTLY WHOLLY-OWNED
Percent of Outstanding Equity Interests Owned Subsidiary Directly or ndirectly by Centex Corporation - ---------- --------------------------------------------- Advanced Protection Systems, Inc. 84.75% Cavco Industries, LLC 80.50% CC Rowlett MOB, LLC 50.00% Centex-Aim Construction, L.L.C. 80.00% Centex Concord Property Management, L.L.C. 50.00% Centex Construction Products, Inc. 61.50% Centex Development 1, LLC 98.00% Centex Development Holding Company UK Limited 93.50% Fairclough Homes Group Limited 93.50% Fairclough Homes Limited 93.50% Fairpine Limited 50.00% Viewton Properties Limited 50.00% Centex Homes International B.V. 93.50% Centex Latin America, Inc. 95.00% 900 Development Corporation 95.00% Inverloma, S. de R.L. de C.V. 30.00% Centex Rodgers No. 1, LLC 99.00% Centex-Rooney/HLM Correctional Design/Builders, L.C. 70.00% Centex-Rooney National Development, J.V. 75.00% Centex-Rooney/RS&H Design Builders, L.C. 90.00% Centex-Rooney Schenkel Shultz Design/Builders, L.C. 50.00% Centex Seismic Services, Inc. 95.00% Centex Urban LLC 95.00% Charles Church Homes Limited 50.00% Copper Canyon Development Company LLC 45.70% CSL Agnews Development, LLC 33.33% GV Northfield I LLC 50.00% M&W General Construction Company 49.00% Nomas Corp. 49.90% Nomas Development Company, LLC 49.90% ST Lending, Inc. 49.90% Parcel E, LLC 75.00% PDG/Prescott Development Group, L.L.C. 50.00% Rural Southwest Housing Company, L.L.C. 50.00% Seabreeze, LLC 66.70% Sun Built Development, LLC 49.00% The Student Communities Group, L.C. 50.00% Wayne Homes, LLC 97.00% Arlington Mortgage, Inc. 97.00% Westfest, LLC 50.00% Windemere BLC Land Company 33.33%
35 36 Wholly-owned subsidiaries of Centex Construction Production, Inc.: CCP Cement Company Mountain Cement Company Nevada Cement Company Texas Cement Company Western Cement Company of California CCP Concrete/Aggregates Company BP Sand & Gravel, Inc. Centex Materials, Inc. Mathews Readymix, Inc. Western Aggregates, Inc. CCP Gypsum Company American Gypsum Company CEGC Holding Company Centex Eagle Gypsum Company Centex Eagle Gypsum Company, L.L.C. M&W Drywall Supply Company Galtco, Inc. CCP Land Company Centex Cement Corporation 36 EX-4.2 3 INDENTURE SUPPLMENT NO. 2 DATED AUGUST 1, 1999 1 EXHIBIT 4.2 CENTEX CORPORATION Issuer and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION Trustee INDENTURE SUPPLEMENT NO. 2 Dated as of August 1, 1999 to INDENTURE Dated as of October 1, 1998 Senior Medium-Term Notes, Series B 2 INDENTURE SUPPLEMENT NO. 2 ("Indenture Supplement"), dated as of August 1, 1999, between CENTEX CORPORATION, a Nevada corporation (together with its successors and assigns as provided in the Indenture referred to below, the "Company"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association (together with its successors in trust thereunder as provided in the Indenture referred to below, the "Trustee"), as trustee under an Indenture dated as of October 1, 1998 (the "Indenture"). PRELIMINARY STATEMENT Section 2.02 of the Indenture provides, among other things, that the Company may, when authorized by its Board of Directors, and the Trustee may at any time and from time to time, enter into a series supplement to the Indenture for the purpose of authorizing one or more Series of Senior Debt Securities and to specify certain terms of each such Series of Senior Debt Securities. The Board of Directors of the Company has duly authorized the creation of a Series of Senior Debt Securities to be known as the Company's Senior Medium-Term Notes, Series B (the "Notes"), and the Company and the Trustee are executing and delivering this Indenture Supplement in order to provide for the issuance of the Notes. ARTICLE ONE Definitions Except to the extent such terms are otherwise defined in this Indenture Supplement or the context clearly requires otherwise, all terms used in this Indenture Supplement which are defined in the Indenture or the form of Fixed Rate Note or Floating Rate Note attached hereto as Exhibits A and B, respectively, either directly or by reference therein, shall have the meanings assigned to them therein. As used in this Indenture Supplement, the following terms shall have the following meanings: AMORTIZED FACE AMOUNT: The term "Amortized Face Amount" of an Original Issue Discount Note, as of the date that (i) the principal amount of such Note is to be repaid prior to its Stated Maturity, whether upon declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise, or (ii) any consent, notice, request, direction, waiver or suit by the Noteholders shall be deemed to be given, made or commenced under this Indenture, shall mean the principal amount of such Note multiplied by its Issue Price plus the portion of the difference between the dollar amount thus obtained and the principal amount of such Note that has accreted at the Yield to maturity of such Note (computed in accordance with generally accepted United States bond yield computation principles) to such date, but in no event shall the Amortized Face Amount of an Original Issue Discount Note exceed its principal amount stated in the applicable Company Order. AMORTIZING NOTE: The term "Amortizing Note" shall mean a Note for which payments of principal of and interest on such Note are made in installments over the life of such Note, and unless otherwise specified in the applicable Company Order, payments with respect to an Amortizing Note shall be applied first to interest due and payable thereon and then to the reduction of the unpaid principal amount thereof. -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 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 -3- 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 Note and to make it available for delivery, and specifying for such Note the following information: (1) the name of the Person in which a Note to be issued and authenticated shall be registered; (2) the address of such Person; (3) the taxpayer identification number of such Person; (4) the principal amount of such Note and, if multiple Notes are to be issued to such Person, the denominations of such Notes; (5) the Issue Price of such Note; (6) the Original Issue Date of such Note; (7) the date upon which such Note is scheduled to mature and the Final Maturity Date; (8) if the Note is to be redeemable at the option of the Company, the Initial Redemption Date and the date or dates on which, and the price or prices at which, such Note is redeemable at the option of the Company; (9) if the Note is to be repayable prior to the Stated Maturity at the option of the Holder, the date or dates on which, and the price or prices at which, such Note is repayable at the option of the Holder; (10) if the Note is a Fixed Rate Note, the rate of interest on such Note and the Interest Payment Dates, if other than March 1 and September 1, and the Record Dates, if other than February 15 and August 15; (11) if the Note is an Original Issue Discount Note, its Yield to Maturity; (12) if such Note is an Amortizing Note, a table setting forth the schedule of dates and amounts of payments of principal of and interest on such Note or the formula for the amortization of principal and/or interest; (13) if the Note is a Reset Note, the Optional Interest Reset Date and the formula, if any, for resetting the interest rate of a Fixed Rate Note or the Spread and/or Spread Multiplier of a Floating Rate Note; (14) if the Note is a Floating Rate Note, its: (A) Initial Interest Rate (I) Interest Reset Dates -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 Note is a Floating Rate Note, whether it is a Regular Floating Rate Note or a Floating Rate/Fixed Rate Note; (16) whether or not such Note is to be issued in the form of a Global Note to the Depositary; (17) the name and address of the Calculation Agent, if other than the Trustee; (18) if other than United States dollars or denominations of $1,000 and integral multiples thereof, the authorized currency or denominations in which Notes shall be issued; and (19) all other information necessary for the issuance of such Note not inconsistent with the provisions of this Indenture; or (b) confirmation given to the Trustee by an officer of the Company designated by an Officers' Certificate, by telephone, confirmed by telex or facsimile or similar writing, of the information given to the Trustee by an Authorized Agent for the issuance of a Note, and the written order of the Company to authenticate such Note and to make it available for delivery. COMPOSITE QUOTATIONS: The term "Composite Quotations" shall mean the daily statistical release "Composite 3:30 P.M. Quotations for U. S. Government Securities" or any successor publication published by the Federal Reserve Bank of New York. CONSOLIDATED NET TANGIBLE ASSETS: The term "Consolidated Net Tangible Assets" shall mean the aggregate amount of assets included on the most recent consolidated balance sheet of the Company and its subsidiaries, less applicable reserves and other properly deductible items and after deducting therefrom (a) all current liabilities and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense, and other like intangibles, all in accordance with generally accepted accounting principles consistently applied. -6- 8 CUSIP: The term "CUSIP" shall mean the registered trademark "Committee on Uniform Securities Identification Procedures" or "CUSIP" and a unique system of identification of each public issue of a security owned by the American Bankers Association and administered by Standard and Poor's Corporation, as agent of the American Bankers Association. DEPOSITARY: The term "Depositary" shall mean, unless otherwise specified by the Company, The Depository Trust Company, New York, New York, or any successor thereto registered as a Clearing Agency under the Securities and Exchange Act of 1934, as amended, or any successor statute or regulation. DESIGNATED CMT TELERATE PAGE: The term "Designated CMT Telerate Page" shall mean the display on Bridge Telerate, Inc. (or any successor service) on the page specified in the applicable Pricing Supplement (or any other page as may replace such page on such service) for the purpose of displaying Treasury Constant Maturities as reported in H.15(519) or, if no such page is specified in the applicable Pricing Supplement, page 7052. DESIGNATED CMT MATURITY INDEX: The term "Designated CMT Maturity Index" shall mean the original period to maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years) specified in the applicable Pricing Supplement with respect to which the CMT Rate will be calculated or, if no such maturity is specified in the applicable Pricing Supplement, 2 years. DESIGNATED LIBOR CURRENCY: The term "Designated LIBOR Currency" shall mean the currency or composite currency specified in the applicable Company Order as to which LIBOR shall be calculated or, if no such currency or composite currency is specified in the applicable Company Order, United States dollars. DESIGNATED LIBOR PAGE: The term "Designated LIBOR Page" shall mean either (a) the display on the Reuters Monitor Money Rates Service (or any successor service) on the page specified in such Company Order (or any other page as may replace such page on such service) for the purpose of displaying the London interbank rates of major banks for the Designated LIBOR Currency (if "LIBOR Reuters" is specified in the applicable Company Order), or (b) the display on Bridge Telerate, Inc. (or any successor service) on the page specified in the applicable Company Order (or any other page as may replace such page on such service) for the purpose of displaying the London interbank rates of major banks for the Designated LIBOR Currency (if "LIBOR Telerate" is specified in the applicable Company Order or neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable Company Order as the method for calculating LIBOR). ELEVENTH DISTRICT COST OF FUNDS RATE: The term "Eleventh District Cost of Funds Rate" shall mean, with respect to any Interest Determination Date relating to a Floating Rate Note for which the interest rate is determined with reference -7- 9 to the Eleventh District Cost of Funds Rate (an "Eleventh District Cost of Funds Rate Interest Determination Date"), the rate equal to the monthly weighted average cost of funds for the calendar month immediately preceding the month in which such Eleventh District Cost of Funds Rate Interest Determination Date falls as set forth under the caption "11th District" on the display on Bridge Telerate, Inc. (or any successor service) on page 7058 ("Telerate Page 7058") as of 11:00 A.M., San Francisco time, on such Eleventh District Cost of Funds Rate Interest Determination Date. If such rate does not appear on Telerate Page 7058 on such Eleventh District Cost of Funds Rate Interest Determination Date, then the Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds Rate Interest Determination Date shall be the monthly weighted average cost of funds paid by member institutions of the Eleventh Federal Home Loan Bank District that was most recently announced (the "Index") by the FHLB of San Francisco as such cost of funds for the calendar month immediately preceding such Eleventh District Cost of Funds Rate Interest Determination Date. If the FHLB of San Francisco fails to announce the Index on or prior to such Eleventh District Cost of Funds Rate Interest Determination Date for the calendar month immediately preceding such Eleventh District Cost of Funds Rate Interest Determination Date, the Eleventh District Cost of Funds Rate determined as of such Eleventh District Cost of Funds Rate Interest Determination Date will be the Eleventh District Cost of Funds Rate in effect on such Eleventh District Cost of Funds Rate Interest Determination Date. FEDERAL FUNDS RATE: The terms "Federal Funds Rate" shall mean, with respect to any Interest Determination Date relating to a Floating Rate Note for which the interest rate is determined with reference to the Federal Funds Rate (a "Federal Funds Rate Interest Determination Date"), the rate on such date for United States dollar federal funds as published in H.15(519) under the heading "Federal Funds (Effective)", as such rate is displayed on Bridge Telerate, Inc. (or any successor service) on page 120 ("Telerate Page 120"), or, if such rate does not appear on Telerate Page 120 or is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on such Federal Funds Rate Interest Determination Date for United States dollar federal funds as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying such rate, under the caption "Federal Funds (Effective)." If such rate does not appear on Telerate Page 120 or is not yet published in H.15(519), H.15 Daily Update or another recognized electronic source by 3:00 P.M., New York City time, on the related Calculation Date, then the Federal Funds Rate on such Federal Funds Rate Interest Determination Date will be calculated by the Calculation Agent and will be the arithmetic mean of the rates for the last transaction in overnight United States dollar federal funds arranged by three leading brokers of federal funds transactions in The City of New York (which may include the Agents or their affiliates) selected by the Calculation Agent prior to 9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination Date; provided, however, that if the brokers so selected by the Calculation Agent are not quoting as mentioned in this sentence, the Federal Funds Rate determined as of such Federal Funds Rate Interest Determination Date will be the Federal Funds Rate in effect on such Federal Funds Rate Interest Determination Date. FINAL MATURITY DATE: The term "Final Maturity Date" shall mean the date beyond which the Stated Maturity of a particular Note may not be extended at the option of the Company. FIXED RATE AMORTIZING NOTE: The term "Fixed Rate Amortizing Note" shall mean a Fixed Rate Note which is an Amortizing Note. -8- 10 FIXED RATE NOTE: The term "Fixed Rate Note" shall mean a Note which bears interest at a fixed rate (which may be zero in the case of a Zero Coupon Note) specified in the applicable Company Order. FLOATING RATE NOTE: The term "Floating Rate Note" shall mean a Note which bears interest at a variable rate determined by reference to an interest rate formula, and includes a CD Rate Note, a CMT Rate Note, a Commercial Paper Rate Note, an Eleventh District Cost of Funds Rate Note, a Federal Funds Rate Note, a LIBOR Note, a Prime Rate Note or a Treasury Rate Note. FUNDED INDEBTEDNESS: The term "Funded Indebtedness" shall mean notes, bonds, debentures or other similar evidences of indebtedness for money borrowed which by its terms matures at or is extendible or renewable at the option of the obligor to a date more than 12 months after the date of the creation of such debt. GLOBAL NOTE: The term "Global Note" shall mean a single Note that is issued to evidence Notes having identical terms and provisions, which is delivered to the Depositary or pursuant to instructions of the Depositary and which shall be registered in the name of the Depositary or its nominee. H.15(519): The term "H.15(519)" shall mean the weekly publication "Statistical Release H.15(519), Selected Interest Rates" or any successor publication published by the Board of Governors of the Federal Reserve System. H.15 DAILY UPDATE: The term "H.15 Daily Update" shall mean the daily update of H.15(519), available through the world-wide-web site of the Board of Governors of the Federal Reserve System at 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. -9- 11 INITIAL REDEMPTION DATE: The term "Initial Redemption Date" shall mean the earliest date, if any, on which a particular Note shall be redeemable at the option of the Company prior to the Stated Maturity of such Note, as specified in the applicable Company Order. INTEREST ACCRUAL PERIOD: The term "Interest Accrual Period" for a particular Floating Rate Note shall mean the period from the date of issue of such Floating Rate Note, or from an Interest Reset Date, if any, to its next subsequent Interest Reset Date. INTEREST DETERMINATION DATE: The term "Interest Determination Date" shall mean, with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate, the second Business Day immediately preceding the applicable Interest Reset Date; the "Interest Determination Date" with respect to the Eleventh District Cost of Funds Rate shall be the last working day of the month immediately preceding the applicable Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of San Francisco") publishes the Index; and the "Interest Determination Date" with respect to LIBOR shall be the second London Business Day immediately preceding the applicable Interest Reset Date, unless the Designated LIBOR Currency is British pounds sterling, in which case the "Interest Determination Date" shall be the applicable Interest Reset Date. With respect to the Treasury Rate, the "Interest Determination Date" shall be the day in the week in which the applicable Interest Reset Date falls on which day Treasury Bills are normally auctioned (Treasury Bills are normally sold at an auction held on Monday of each week, unless such Monday is a legal holiday, in which case the auction is normally held on the immediately succeeding Tuesday although such auction may be held on the preceding Friday); provided, however, that if an auction is held on the Friday of the week preceding the applicable Interest Reset Date, the "Interest Determination Date" shall be such preceding Friday; provided, further, that if the Interest Determination Date would otherwise fall on an Interest Reset Date, then such Interest Reset Date shall be postponed to the next succeeding Business Day. The "Interest Determination Date" pertaining to a Floating Rate Note the interest rate of which is determined by reference to two or more Interest Rate Bases shall be the most recent Business Day which is at least two Business Days prior to the applicable Interest Reset Date for such Floating Rate Note on which each Interest Rate Basis is determinable. Each Interest Rate Basis shall be determined as of such date, and the applicable interest rate shall take effect on the applicable Interest Reset Date. INTEREST PAYMENT DATE: (a) The term "Interest Payment Date" shall mean with respect to a Floating Rate Note, including a Floating Rate Amortizing Note, which has an Interest Reset Date reset (1) daily, weekly or monthly: the third Wednesday of each month or the third Wednesday of March, June, September and December of each year, as specified in the applicable Company Order, (2) quarterly: the third Wednesday of March, June, September and December of each year, as specified in the applicable Company Order, (3) semiannually: the third Wednesday of the two months of each year, as specified in the applicable Company Order; (4) annually: the third Wednesday of the month of each year, as specified in the applicable Company Order, and, in each case, the Maturity Date of such Floating Rate Note and, with respect to defaulted interest on such Floating Rate Note, the date established by the Company for the payment of such defaulted interest. If any Interest Payment Date (other than at Maturity) for any Floating Rate Note would fall on a day that is not a Business Day with respect to such Floating Rate Note, such Interest Payment Date will be the immediately following day that is a Business Day with respect to such Floating Rate Note, except that, in the case of a LIBOR Note, -10- 12 if such Business Day with respect to such Floating Rate Note is in the next succeeding calendar month, such Interest Payment Date shall be the immediately preceding London Business Day. (b) The term "Interest Payment Date" shall mean with respect to a Fixed Rate Note, including a Fixed Rate Amortizing Note, each March 1 and September 1, or such other dates which are specified in the applicable Company Order during the period such Fixed Rate Note is outstanding, the Maturity Date of such Fixed Rate Note, and with respect to defaulted interest on such Fixed Rate Note, the date established by the Company for the payment of such defaulted interest. (c) Notwithstanding the foregoing, the first Interest Payment Date for any Note originally issued between a Record Date and the next Interest Payment Date shall be the Interest Payment Date following the next succeeding Record Date. INTEREST RATE: (a) The term "Interest Rate" for a particular Floating Rate Note shall mean (1) from the date of issue of such Floating Rate Note to the first Interest Reset Date for such Floating Rate Note, the Initial Interest Rate, and (2) each Interest Accrual Period commencing on or after such First Interest Reset Date, the Base Rate with reference to the Index Maturity for such Floating Rate Note as specified in the applicable Company Order plus or minus the Spread, if any, multiplied by the Spread Multiplier, if any; PROVIDED that in the event no Spread or Spread Multiplier is provided in such Company Order, the Spread and Spread Multiplier shall be zero and one, respectively; PROVIDED, FURTHER, in no event shall the Interest Rate be greater than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if any; PROVIDED, FURTHER, the Interest Rate in effect for the ten days immediately prior to Maturity will be the Interest Rate in effect on the tenth day preceding such Maturity; and PROVIDED, FURTHER, the Interest Rate will in no event be higher than the maximum rate permitted by Texas or other applicable law, as the same may be modified by United States federal laws of general application. (b) The term "Interest Rate" for a particular Fixed Rate Note shall mean the interest rate specified in the applicable Company Order. INTEREST RATE BASIS: The term "Interest Rate Basis" shall mean with respect to (a) CD Rate Notes, the CD Rate, (b) CMT Rate Notes, the CMT Rate, (c) Commercial Paper Rate Notes, the Commercial Paper Rate, (d) Eleventh District Cost of Funds Note, the Eleventh District Cost of Funds Rate, (e) Federal Funds Rate Notes, the Federal Funds Rate, (f) LIBOR Notes, LIBOR, (g) Prime Rate Notes, the Prime Rate, (h) Treasury Rate Notes, the Treasury Rate, and (i) any other Floating Rate Note, the interest rate formula which determines the variable rate at which such Note bears interest. INTEREST RESET DATE: The term "Interest Reset Date" shall mean, in the case of a Floating Rate Note specified in the applicable Company Order as being reset (a) daily: each Business Day; (b) weekly: the Wednesday of each week (with the exception of weekly reset Treasury Rate Notes which reset the Tuesday of each week, except as specified below); (c) monthly: the third Wednesday of each month (with the exception of monthly reset Floating Rate Notes as to which the Eleventh District Cost of Funds Rate is an applicable Interest Rate Basis which will reset on the first calendar day of the month); (d) quarterly: the third Wednesday of March, June, September and December; (e) semiannually: the third Wednesday of the two months specified in the applicable -11- 13 Company Order; and (f) annually: the third Wednesday of the month specified in the applicable Company Order. If any Interest Reset Date for a Floating Rate Note would otherwise be a day which is not a Business Day, such Interest Reset Date shall be postponed to the next succeeding day that is a Business Day, except that in the case of a LIBOR Note, if such Business Day is in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding London Business Day. If, in the case of a Treasury Rate Note, an Interest Reset Date shall fall on a day on which the Treasury auctions Treasury Bills, then such Interest Reset Date shall instead be the first Business Day immediately following such auction. INTEREST RESET PERIOD: The term "Interest Reset Period" shall mean for: (a) each Floating Rate Note on which interest is reset monthly, quarterly, semiannually or annually, and each Fixed Rate Note, the period: (1) beginning on and including the Original Issue Date of such Note or the most recent Interest Payment Date on which interest was paid on such Note, and (2) ending on but not including the next Interest Payment Date or, for the last Interest Reset Period, the Maturity Date, of such Note; (b) each Floating Rate Note on which interest is reset daily or weekly, the period: (1) beginning on and including the Original Issue Date of such Floating Rate Note, or beginning on but excluding the most recent Record Date through which interest was paid on such Note, and (2) ending on and including the next Record Date or, for the last Interest Reset Period, ending on but excluding the Maturity Date, of such Note; PROVIDED, HOWEVER, that the first Interest Reset Period for any Note which has its Original Issue date after a Record Date and prior to its next Interest Payment Date, shall begin on and include such Original Issue Date and (i) end on and include the next Record Date for Floating Rate Notes on which interest is reset daily or weekly, and (ii) end on but not include the second Interest Payment Date after the Original Issue Date for all other Notes. ISSUE PRICE: The term "Issue Price" shall mean the price expressed as a percentage of the aggregate principal amount of a Note at which such Note is issued. LIBOR: The term "LIBOR" for a particular Floating Rate Note, unless otherwise indicated in the applicable Company Order, shall mean, with respect to any LIBOR Interest Determination Date, the rate determined: (i) With respect to any LIBOR Interest Determination Date, LIBOR shall be either: (a) if "LIBOR Telerate" is specified in the applicable Company Order or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable Company Order as the method for calculating LIBOR, the rate for deposits in the Designated LIBOR Currency having the Index Maturity specified in such Company Order, commencing on such Interest Reset Date, that appears on the Designated -12- 14 LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest Determination Date; or (b) if "LIBOR Reuters" is specified in the applicable Pricing Supplement, the arithmetic mean of the offered rates (unless the Designated LIBOR Page by its terms provides only for a single rate, in which case such single rate shall be used) for deposits in the Designated LIBOR Currency having the Index Maturity specified in such Pricing Supplement, commencing on the applicable Interest Reset Date, that appear (or, if only a single rate is required as aforesaid, appears) on the Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest Determination Date. If fewer than two such offered rates so appear, or if no such rate so appears, as applicable, LIBOR on such LIBOR Interest Determination Date shall be determined in accordance with the provisions described in clause (ii) below. (ii) With respect to a LIBOR Interest Determination Date on which fewer than two offered rates appear, or no rate appears, as the case may be, on the Designated LIBOR Page as specified in clause (i) above, the Calculation Agent will request the principal London offices of each of four major reference banks (which may include affiliates of the Agents) in the London interbank market, as selected by the Calculation Agent, to provide the Calculation Agent with its offered quotation for deposits in the Designated LIBOR Currency for the period of the Index Maturity specified in the applicable Pricing Supplement, commencing on the applicable Interest Reset Date, to prime banks in the London interbank market at approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date and in a principal amount that is representative for a single transaction in the Designated LIBOR Currency in such market at such time. If at least two such quotations are so provided, then LIBOR on such LIBOR Interest Determination Date shall be the arithmetic mean of such quotations. If fewer than two such quotations are so provided, then LIBOR on such LIBOR Interest Determination Date shall be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in the applicable Principal Financial Center, on such LIBOR Interest Determination Date by three major banks (which may include affiliates of the Agents) in such Principal Financial Center selected by the Calculation Agent for loans in the Designated LIBOR Currency to leading European banks, having the Index Maturity specified in the applicable Company Order and in a principal amount that is representative for a single transaction in the Designated LIBOR Currency in such market at such time; provided, however, that if the banks so selected by the Calculation Agent are not quoting as mentioned in this sentence, LIBOR determined as of such LIBOR Interest Determination Date shall be LIBOR in effect on such LIBOR Interest Determination Date. LIBOR INTEREST DETERMINATION DATE: The term "LIBOR Interest Determination Date" shall mean the Interest Determination Date pertaining to a LIBOR Note. LIBOR NOTES: The term "LIBOR Notes" shall mean Floating Rate Notes which are specified in the applicable Company Order as bearing interest at an interest rate calculated with reference to LIBOR. LONDON BUSINESS DAY: The term "London Business Day" shall mean any day on which dealings in the Designated LIBOR Currency are transacted in the London interbank market. -13- 15 MATURITY DATE: The term "Maturity Date," when used with respect to any Note, shall mean the date on which the principal of such Note or an installment of principal becomes due and payable in accordance with its terms and the terms of this Indenture as therein or herein provided, whether at Stated Maturity, upon declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise. MAXIMUM INTEREST RATE: The term "Maximum Interest Rate" shall mean the maximum rate of interest, if any, which may be applicable to any Floating Rate Note during any Interest Accrual Period as specified in the applicable Company Order. MINIMUM INTEREST RATE: The term "Minimum Interest Rate" shall mean the minimum rate of interest, if any, which may be applicable to any Floating Rate Note during any Interest Accrual Period as specified in the applicable Company Order. MONEY MARKET YIELD: The term "Money Market Yield" shall be the yield (expressed as a percentage) calculated in accordance with the following formula: Money Market Yield = [(D x 360)/(360 - (D x M))] x 100 where "D" refers to the applicable per annum rate for commercial paper quoted on a bank discount basis and expressed as a decimal, and "M" refers to the actual number of days in the applicable Interest Reset Period. NOTEHOLDER; HOLDER: The terms "Noteholder" or "Holder" shall mean any Person in whose name at the time a particular Note is registered in the register of the Company kept for that purpose in accordance with the terms hereof. OFFICERS' CERTIFICATE: The term "Officers' Certificate" when used with respect to the Company, shall mean a certificate signed by the Chairman of the Board, the President or any Vice President and by the Secretary or an Assistant Secretary of the Company. OPTIONAL INTEREST RESET DATE: The term "Optional Interest Reset Date" shall mean each date on which the interest rate on a Fixed Rate Reset Note or the Spread and/or Spread Multiplier of a Floating Rate Reset Note may be reset at the option of the Company. ORIGINAL ISSUE DATE: The term "Original Issue Date" shall mean for a particular Note, or portions thereof, the date upon which it, or such portion, was issued by the Company pursuant to this Indenture or any indenture -14- 16 supplemental thereto and authenticated by the Trustee (other than in connection with a transfer, exchange or substitution). ORIGINAL ISSUE DISCOUNT NOTE: The term "Original Issue Discount Note" shall mean (i) a Note that has a "stated redemption price at maturity" that exceeds its "issue price", each as defined for United States federal income tax purposes, by at least 0.25% of its stated redemption price at maturity multiplied by the number of complete years from the Original Issue Date to the Stated Maturity for such Note (or in the case of a Note that provides for payment of any amount other than the "qualified stated interest", as defined for United States federal income tax purposes, prior to maturity, the weighted average maturity of the Note) and (ii) any other Note designated by the Company in the applicable Company Order as issued with original issue discount for United States federal income tax purposes. PERSON: The term "Person" shall mean any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. PRIME RATE: The term "Prime Rate" for a particular Floating Rate Note, unless otherwise indicated in the applicable Company Order, shall mean, with respect to any Prime Rate Interest Determination Date, the rate on such date as published in H.15(519) under the caption "Bank Prime Loan" or, if not published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on such Prime Rate Interest Determination Date as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying such rate, under the caption "Bank Prime Loan." If such rate is not yet published in H.15(519), H.15 Daily Update or another recognized electronic source by 3:00 P.M., New York City time, on the related Calculation Date, then the Prime Rate shall be the arithmetic mean of the rates of interest publicly announced by each bank that appears on the Reuters Screen USPRIME1 Page (as hereinafter defined) as such bank's prime rate or base lending rate as of 11:00 A.M., New York City time, on such Prime Rate Interest Determination Date. If fewer than four such rates appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest Determination Date, then the Prime Rate shall be the arithmetic mean of the prime rates or base lending rates quoted on the basis of the actual number of days in the year divided by a 360-day year as of the close of business on such Prime Rate Interest Determination Date by four major money center banks (which may include affiliates of the Agents) in The City of New York selected by the Calculation Agent. If fewer than four such quotations are so provided, then the Prime Rate shall be the arithmetic mean of four prime rates quoted on the basis of the actual number of days in the year divided by a 360-day year as of the close of business on such Prime Rate Interest Determination Date as furnished in The City of New York by the major money center banks, if any, that have provided such quotations and by a reasonable number of substitute banks or trust companies (which may include affiliates of the Agents) to obtain four such prime rate quotations, provided such substitute banks or trust companies are organized and doing business under the laws of the United States, or any State thereof, each having total equity capital of at least $500 million and being subject to supervision or examination by Federal or State authority, selected by the Calculation Agent to provide such rate or rates; provided, however, that if the banks or trust companies so selected by the Calculation Agent are not quoting as mentioned in this sentence, the Prime Rate determined as of such Prime Rate Interest Determination Date will be the Prime Rate in effect on such Prime Rate Interest Determination Date. -15- 17 PRIME RATE NOTES: The term "Prime Rate Notes" shall mean Floating Rate Notes which are specified in the applicable Company Order as bearing interest at an interest rate calculated with reference to the Prime Rate. PRINCIPAL AMOUNT: The term "principal amount" with respect to any Note shall mean the principal amount thereof set forth in the applicable Company Order; PROVIDED that in the case of any Original Issue Discount Note, its principal amount as of (i) any date that the principal amount of such Note is to be repaid prior to its Stated Maturity, whether upon declaration of acceleration, call for redemption, repayment at the option of the Noteholder or otherwise, or (ii) any date that any consent, notice, request, direction, waiver or suit by the Noteholders shall be deemed to be given, made or commenced under this Indenture, such term shall mean the Amortized Face Amount of such Note as of such date. PRINCIPAL FINANCIAL CENTER: The term "Principal Financial Center" shall mean the capital city of the country to which the Designated LIBOR Currency relates (or, in the case of ECU, Luxembourg), except that with respect to United States dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, Portuguese escudos, South African rand and Swiss francs, the "Principal Financial Center" shall be The City of New York, Sydney, Toronto, Frankfurt, Amsterdam, London, Johannesburg and Zurich, respectively. RECORD DATE: The term "Record Date" shall mean for the Interest Payment Date for the payment of interest for an Interest Reset Period for a particular Note, unless otherwise specified in the applicable Company Order, (a) the day which is fifteen calendar days immediately prior to such Interest Payment Date, whether or not such day is a Business Day, (b) the Maturity Date of such Note, unless such Maturity Date for a Fixed Rate Note is a January 1 or a July 1, in which event the Record Date will be as provided in clause (a), and (c) a date which is not less than five Business Days immediately preceding the Interest Payment Date of defaulted interest on such Note established by notice given by first-class mail by or on behalf of the Company to the Holder of such Note not less than fifteen calendar days prior to such Interest Payment Date. REDEMPTION DATE: The term "Redemption Date" for a Note shall mean the date fixed for the redemption of such Note in accordance with the provisions of this Indenture. RESET NOTE: The term "Reset Note" shall mean a Fixed Rate Note, with respect to which the Company has the option to reset the interest rate, and a Floating Rate Note, with respect to which the Company has the option to reset the Spread and/or Spread Multiplier. REUTERS SCREEN USPRIME1 PAGE: The term "Reuters Screen USPRIME1" shall mean the display designated as page "USPRIME1" on the Reuters Monitor Money Rate Service (or such other page which may replace the USPRIME1 page on such service) for the purpose of displaying the prime rate or base lending rate of major United States banks. -16- 18 SPREAD: The term "Spread" applicable to a particular Floating Rate Note shall mean the number of Basis Points to be added to or subtracted from the related Interest Rate Basis or Bases applicable to such Floating Rate Note as specified in the applicable Company Order, used in the calculation of the Interest Rate for such Floating Rate Note. SPREAD MULTIPLIER: The term "Spread Multiplier" applicable to a particular Floating Rate Note shall mean the percentage of the related Interest Rate Basis or Bases applicable to such Floating Rate Note as specified in the applicable Company Order, used in the calculation of the Interest Rate for such Floating Rate Note. STATED MATURITY: The term "Stated Maturity," when used with respect to any Note, shall mean the date specified in such Note as the date on which the principal of such Note is due and payable. TREASURY: The term "Treasury" shall mean the United States Department of Treasury. TREASURY BILLS: The term "Treasury Bills" shall mean direct obligations of the United States. TREASURY RATE: The term "Treasury Rate" for a particular Floating Rate Note, unless otherwise indicated in the applicable Company Order, shall mean, with respect to any Treasury Rate Interest Determination Date, the rate from the auction held on such Treasury Rate Interest Determination Date (the "Auction") of Treasury Bills having the Index Maturity specified in the applicable Company Order under the caption "AVGE INVEST YIELD" on the display on Bridge Telerate, Inc. (or any successor service) on page 56 ("Telerate Page 56") or page 57 ("Telerate Page 57") or, if not so published by 3:00 P.M., New York City time, on the related Calculation Date, the auction average rate of such Treasury Bills (expressed as a bond equivalent on the basis of a year of 365 or 366 days, as applicable, and applied on a daily basis) as otherwise announced by the United States Department of the Treasury. In the event that the results of the Auction of Treasury Bills having the Index Maturity specified in the applicable Company Order are not so published by 3:00 P.M., New York City time, on the related Calculation Date, or if no such Auction is held, then the Treasury Rate shall be the rate (expressed as a bond equivalent on the basis of a year of 365 or 366 days, as applicable, and applied on a daily basis) on such Treasury Rate Interest Determination Date of Treasury Bills having the Index Maturity specified in the applicable Company Order as published in H.15(519) under the caption "U.S. Government Securities/Treasury Bills/Secondary Market" or, if not yet published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on such Treasury Rate Interest Determination Date of such Treasury Bills as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying such rate, under the caption "U.S. Government Securities/Treasury Bills/Secondary Market." If such rate is not yet published in H.15(519), H.15 Daily Update or another recognized electronic source, then the Treasury Rate shall be calculated by the Calculation Agent and shall be a yield to maturity (expressed as a bond equivalent on the basis of a year of 365 or 366 days, as applicable, and applied on a daily basis) of the arithmetic mean of the secondary market bid rates, as of approximately 3:30 P.M., New -17- 19 York City time, on such Treasury Rate Interest Determination Date, of three leading primary United States government securities dealers (which may include the Agents or their affiliates) selected by the Calculation Agent, for the issue of Treasury Bills with a remaining maturity closest to the Index Maturity specified in the applicable Company Order; provided, however, that if the dealers so selected by the Calculation Agent are not quoting as mentioned in this sentence, the Treasury Rate determined as of such Treasury Rate Interest Determination Date shall be the Treasury Rate in effect on such Treasury Rate Interest Determination Date. TREASURY RATE NOTES: The term "Treasury Rate Notes" shall mean Floating Rate Notes which are specified in the applicable Company Order as bearing interest at an interest rate calculated with reference to the Treasury Rate. TRUSTEE: The term "Trustee" shall mean Chase Bank of Texas, National Association and shall also include any successor Trustee. YIELD TO MATURITY: The term "Yield to Maturity" shall mean for a particular Note the yield to maturity of such Note, computed in accordance with generally accepted United States bond yield computation principles and expressed as a percentage, specified in the applicable Company Order. ZERO COUPON NOTE: The term "Zero Coupon Note" means a Note issued at a price representing a discount from the principal amount payable at maturity and bearing a zero fixed rate of interest. ARTICLE TWO Terms and Issuance of the Notes Section 2.01. Issuance and Designation. A Series of Senior Debt Securities which shall be designated as the Company's "Medium-Term Notes, Series A" shall be executed, authenticated and delivered from time to time in accordance with the provisions of, and shall in all respects be subject to, the terms, conditions and covenants of, the Indenture and this Indenture Supplement (including the form of Notes set forth in Exhibits A and B). The aggregate principal amount of the Notes which may be authenticated and delivered under the Indenture Supplement shall not, except as permitted by the provisions of the Indenture, exceed $250,000,000. Section 2.02. Form and Other Terms of Notes; Incorporation of Terms. (a) Subject to subsection (b) below, the Notes shall be in the form attached hereto as Exhibits A and B, respectively. The Notes shall be registered in such names, shall be in such amounts and shall have such Original Issue Dates, Interest Rates, Maturity Dates, Redemption Dates, if any, Initial Redemption Percentages, if any, and Annual Redemption Percentage Reductions, if any, and such other terms as are communicated by the Company to the Trustee in accordance with the Administrative Procedures described in the Distribution Agreement, dated August 17, 1999, between the Company and the agents named therein. The terms of such Notes are herein incorporated by reference and are part of this Indenture Supplement. -18- 20 (b) Any Note may be issued without the consent of the Holders of any Notes in any such other form or forms and have such other term or terms that may be established consistent with the Indenture and this Indenture Supplement, including, but not limited to, Notes denominated in a foreign currency ("Foreign Currency Notes"), and Notes that initially bear interest at a fixed rate or floating rate through a certain date and then bear interest as established by a remarketing agent for either a period of 365 days or less or a period of more than 365 days ("Remarketed Notes"). Section 2.03. Depository for Global Securities. The Depositary for any Global Securities of the series of which this Note is a part shall be the Depository Trust Company in The City of New York. Section 2.04. Place of Payment. The Place of Payment in respect of the Notes will be at the principal office or agency of the Company in Dallas, Texas or at the office or place of business of the Trustee or its successor in trust under the Indenture, which, at the date hereof, is located at Chase Global Trust, 450 W. 33rd, 15th Floor, New York, New York 10001. ARTICLE THREE Additional Covenants Section 3.01. Limitation on Liens. The following provisions shall apply to the Notes unless specifically otherwise provided in a series supplement. (a) The Company will not itself, and will not permit any subsidiary (other than Centex Financial Services, Inc. and its subsidiaries) to, issue, assume or guarantee any indebtedness for borrowed money if such borrowed money is secured by a mortgage, pledge, security interest, lien or other encumbrance (any such mortgage, pledge, security interest, lien or other encumbrance being hereinafter in this Section 3.01 referred to as a "Lien") upon or with respect to any of the properties or assets of the Company or any such subsidiary or on any shares of capital stock or other equity interests of any subsidiary that owns property or assets (other than Centex Financial Services, Inc. and its subsidiaries), whether, in each case, owned at the date of this Indenture Supplement or thereafter acquired, unless the Company makes effective provision whereby the Notes shall be secured by such Lien equally and ratably with any and all other borrowed money thereby secured; provided, however, that the foregoing restrictions shall not be applicable to: (i) Any Lien existing on any of the Company's properties or assets or shares of capital stock or other equity interests at the date of this Indenture Supplement; (ii) Any Lien created by a subsidiary in favor of the Company or any wholly-owned subsidiary; (iii) Any Lien on any asset of any corporation or other entity (or on any accession or improvement to such asset or any proceeds thereof) existing at the time such corporation or other entity becomes a subsidiary; (iv) Any Lien on any asset of any corporation or other entity (or on any accession or improvement to such asset or any proceeds thereof) existing at the time such corporation or other entity is merged or consolidated with or into the Company or a subsidiary; (v) Any Lien on any asset existing at the time of acquisition thereof (or on any accession or improvement to such asset or any proceeds thereof) by the Company or any subsidiary; -19- 21 (vi) Any Lien on any asset (or on any accession or improvement to such asset or any proceeds thereof) securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of acquiring such asset or the making of any improvement thereof; provided that such Lien attaches to such asset concurrently with or within 180 days after the acquisition thereof or the making of such improvement; (vii) Any Lien incurred in connection with pollution control, industrial revenue or any similar financing; (viii) Any Lien arising out of the refinancing, extension, renewal or replacement of any of the Liens permitted by any of clauses (i) through (vii) above; provided that such Indebtedness is not increased and is not secured by any additional assets; and (ix) any Lien imposed by law. (b) Notwithstanding the provisions of subsection (a) of this Section 3.01, the Company or any subsidiary may issue, assume or guarantee indebtedness for borrowed money secured by a Lien which would otherwise be subject to the foregoing restrictions in an aggregate amount which, together with all other such secured borrowings of the Company and its subsidiaries and the Attributable Debt (as defined below) in respect of Sale and Lease-Back Transactions (as defined in Section 3.02) existing at such time (other than Sale and Lease-Back Transactions not subject to the limitation contained in Section 3.02), does not at the time exceed twenty percent (20%) of the Consolidated Net Tangible Assets of the Company and its subsidiaries, as shown on the audited consolidated balance sheet contained in the latest annual report to stockholders of the Company. The term "Attributable Debt" as used in this paragraph shall mean, as of any particular time, the present value of the obligation of a lessee for rental payments during the remaining term of any lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended). Section 3.02. Limitation on Sale and Lease-Back Transactions. The Company will not, nor will it permit any subsidiary to, enter into any arrangement with any person (other than the Company) providing for the leasing by the Company or a subsidiary of any of its properties or assets (except for temporary leases for a term of not more than three (3) years and except for sales and leases of model homes), which property has been or is to be sold or transferred by the Company or such subsidiary to such person (herein referred to as a "Sale and Lease-Back Transaction"), unless (a) the net proceeds to the Company or such subsidiary from such sale or transfer equal or exceed the fair value (as determined by the Board of Directors, the Chairman of the Board, the Vice Chairman, the President or the principal financial officer of the Company) of the property so leased, (b) the Company or such subsidiary would be entitled to incur Indebtedness secured by a Lien on the property to be leased pursuant to Section 3.01, (c) the Company shall, and in any such case the Company covenants that it will, apply an amount equal to the fair value (as determined by the Board of Directors, the Chairman of the Board, the Vice Chairman, the President or the principal financial officer of the Company) of the property so leased to the retirement (other than any mandatory retirement), within 180 days of the effective date of any such Sale and Lease-Back Transaction, of Funded Indebtedness of the Company, (d) such Sale and Lease-Back Transaction relates to a sale which occurred within 180 days from the date of acquisition of such property by the Company or a subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later, or (e) such transaction was consummated prior to the date of this Indenture Supplement. -20- 22 ARTICLE FOUR Defeasance Section 4.01. Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, at any time, with respect to the Notes, elect to have either Section 13.01 of the Indenture or Section 4.03 of this Indenture Supplement be applied to all outstanding Notes upon compliance with the conditions set forth in Article Thirteen of the Indenture and below in this Article Four. Section 4.02. Legal Defeasance. Upon the Company's exercise under Section 4.01 of the option applicable to Section 13.01 of the Indenture, the Company may terminate its obligations under the Notes, the Indenture and this Indenture Supplement by complying with the terms and conditions of Section 13.01 of the Indenture; provided, however, that the Opinion of Counsel delivered to the Trustee will also state that either (A) the Company has received from, or there has been published by, the Internal Revenue Service, a ruling or (B) since the date hereof, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred. Section 4.03. Covenant Defeasance. Upon the Company's exercise under Section 4.01 of the option applicable to this Section 4.03, the Company shall be released from its obligations under the covenants contained in Article Three of this Indenture Supplement with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied ("Covenant Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default, but, except as specified above, the remainder of the Indenture and such Notes shall be unaffected thereby. In addition, the Company's exercise under Section 4.01 of the option applicable to this Section 4.03 shall not constitute an Event of Default. Section 4.04. Conditions to Covenant Defeasance. The following shall be the conditions to the application of Section 4.03 to the outstanding Notes: (1) the Company shall irrevocably have deposited or caused to be deposited with the Trustee under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds in trust solely for the benefit of the holders of such Notes for that purpose, money or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of America for the payment of which guarantee or obligation the full faith and credit of the United States is pledged ("U.S. Government Obligations") maturing as to principal and interest in such amounts and at such times as are sufficient, as verified in a Certificate of a Firm of Independent Public Accountants, without consideration of any reinvestment of such interest, to pay principal of and interest or sinking funds on the outstanding Notes to maturity or redemption as the case may be, provided that the Trustee or any paying agent shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of said principal and -21- 23 interest and said sinking fund with respect to the Notes. The Company may make an irrevocable deposit pursuant to this Section 4.04 only if at such time the Company shall have delivered to the Trustee and any such paying agent an Officers' Certificate and an Opinion of Counsel, each stating that all conditions herein precedent to the satisfaction and discharge of this Indenture have been complied with and the Opinion of Counsel further states that the making of such deposit (i) does not contravene or violate any provision of any indenture, mortgage, loan agreement or other similar agreement known to such counsel to which the Company is a party or by which it or any of its property is bound, (ii) does not require registration by the deposit referred to above under the Investment Company Act of 1940, as amended, and (iii) to the effect that the holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance and will be subject to federal income tax in the same amount, in the same manner and at the same times as would have been the case if such defeasance had not occurred. Notwithstanding the foregoing paragraph, the Company's obligations in Sections 2.06, 2.08, 5.01, 5.02, 5.05, 6.01, 8.06, 8.10, 13.04 and 13.05 of the Indenture shall survive until the Notes are no longer outstanding. Thereafter, the Company's obligations in Section 8.06, 13.04 and 13.05 of the Indenture shall survive. ARTICLE FIVE Miscellaneous Section 5.01. Ratification of Indenture. As supplemented by this Indenture Supplement, the Indenture is in all respects ratified and confirmed and the Indenture as so supplemented by this Indenture Supplement shall be read, taken and construed as one and the same instrument. Section 5.02. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture Supplement by any of the provisions of the Trust Indenture Act, such required provisions shall control. Section 5.03. Effect of Headings. The article and section headings herein are included for convenience only and shall not affect the construction hereof. Section 5.04. Counterparts. This Indenture Supplement may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Section 5.05. Severability. In case any provision of this Indenture Supplement or in the Senior Notes shall be found invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 5.06. Benefits of Indenture Supplement. Nothing in this Indenture Supplement or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture Supplement. Section 5.07. Acceptance of Trusts. Chase Bank of Texas, National Association hereby accepts the trusts in this Indenture Supplement declared and provided, upon the terms and conditions herein and in the Indenture set forth. -22- 24 Section 5.08. Governing Law. This Indenture Supplement and each Note issued hereunder shall be deemed to be a contract made under the laws of the State of Texas, and for all purposes shall be construed in accordance with the laws of said State. [Remainder of page intentionally left blank.] -23- 25 IN WITNESS WHEREOF, the Company and the Trustee have caused this Indenture Supplement to be duly executed by their respective officers thereunto duly authorized and their respective seals duly attested to be hereunto affixed all as of the day and year first above written. CENTEX CORPORATION [SEAL] Attest: By: ------------------------------------ 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: -24- 26 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 17th day of August, 1999. --------------------------------------------- Notary Public in and for the State of Texas My commission expires: --------------------------------------------- Printed Name of Notary Public - -------------------------- STATE OF TEXAS ) ) COUNTY OF DALLAS ) BEFORE ME, the undersigned authority, a Notary Public in and for said state, on this day personally appeared ________________ and ________________, known to me to be the persons and officers whose names are subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association, and that they executed the same as the act of said national banking association for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 17th day of August, 1999. --------------------------------------------- Notary Public in and for the State of Texas My commission expires: --------------------------------------------- Printed Name of Notary Public - -------------------------- -25- EX-4.4 4 INDENTURE SUPPLEMENT NO. 5 DATED AUGUST 1, 1999 1 EXHIBIT 4.4 CENTEX CORPORATION Issuer and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION (Formerly Texas Commerce Bank National Association) Trustee INDENTURE SUPPLEMENT NO. 5 Dated as of August 1, 1999 to INDENTURE Dated as of March 12, 1987 Subordinated Medium-Term Notes, Series B 2 INDENTURE SUPPLEMENT NO. 5 ("Indenture Supplement"), dated as of August 1, 1999, between CENTEX CORPORATION, a Nevada corporation (together with its successors and assigns as provided in the Indenture referred to below, the "Company"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association (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 B (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: -5- 7 (A) Initial Interest Rate (I) Interest Reset Dates (B) Interest Rate Basis or Bases (J) Spread (including any Designated LIBOR Currency and Designated LIBOR Page or any Designated CMT Maturity Index and Designated CMT Telerate Page) (C) Index Maturity (K) Spread Multiplier (D) Interest Determination Dates (L) Maximum Interest Rate (E) Interest Reset Period (M) Minimum Interest Rate (F) Initial Interest Reset Date (N) Interest Payment Dates (G) Fixed Rate Commencement Date, if (O) Record Dates applicable (H) Fixed Interest Rate, if applicable
(15) If such 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 $250,000,000. 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 August 17, 1999, 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 17th day of August, 1999. ------------------------------------------- Notary Public in and for the State of Texas My commission expires: ------------------------------------------- Printed Name of Notary Public - --------------------------- STATE OF TEXAS ) ) COUNTY OF DALLAS ) BEFORE ME, the undersigned authority, a Notary Public in and for said state, on this day personally appeared ________________ and ________________, known to me to be the persons and officers whose names are subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association, and that they executed the same as the act of said national banking association for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 17th day of August, 1999. ------------------------------------------- Notary Public in and for the State of Texas My commission expires: ------------------------------------------- Printed Name of Notary Public - --------------------------- -22- EX-12.1 5 COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES 1 EXHIBIT 12.1 CENTEX CORPORATION CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES TOTAL COMPANY (including CMO's and Savings and Loan)
QTR. ENDED QTR. ENDED YEAR ENDED 06/30/99 06/30/98 03/31/99 ---------- ---------- ---------- FIXED CHARGES (A) Interest Expensed and Capitalized 28,483 27,778 118,451 (B) Amortized Premiums, Discounts and capitalized interest related to indebtedness included in (A) included in (A) included in (A) (C) An estimate of the interest within rental expense 2,551 1,904 10,457 (D) Preference security dividend requirements of consolidated subsidiaries N/A N/A N/A Additional Adjustments: External Interest (CMO's) -- -- -- Amortization of discount and capitalized expense (CMO's) -- -- -- ---------- ---------- ---------- TOTAL FIXED CHARGES $ 31,034 $ 29,682 $ 128,908 ========== ========== ========== EARNINGS ADD: (A) Pre-tax earnings 93,110 76,722 373,294 Add back: minority interest in consolidated subsidiaries 14,114 12,408 53,613 Adjust for income or loss from equity investees Subtract : CDC earnings (add back losses) (20) 346 (430) Subtract : CXP earnings -- -- -- ---------- ---------- ---------- 107,204 89,476 426,477 (B) Add back: fixed charges 31,034 29,682 128,908 (C) Add back: Amortization of capitalized interest -- -- -- (D) Add back: distributed income of equity investee N/A N/A N/A (E) Your share of pre-tax losses of equity investees for which charges arising from guarantees are included in fixed charges. -- -- -- ---------- ---------- ---------- 138,238 119,158 555,385 SUBTRACT (A) Capitalized Interest -- -- -- (B) Preference security dividend requirements of consolidated subsidiaries N/A N/A N/A (C) Minority interest in pre-tax income of subsidiaries that have not incurred fixed charges -- -- -- ---------- ---------- ---------- NET EARNINGS $ 138,238 $ 119,158 $ 555,385 ========== ========== ========== RATIO 4.45 4.01 4.31 CENTEX CORPORATION CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES TOTAL COMPANY (including CMO's and Savings and Loan) YEAR ENDED YEAR ENDED YEAR ENDED YEAR ENDED 03/31/98 03/31/97 03/31/96 03/31/95 ---------- ---------- ---------- ---------- FIXED CHARGES (A) Interest Expensed and Capitalized 78,128 65,517 69,724 58,771 (B) Amortized Premiums, Discounts and capitalized interest related to indebtedness included in (A) included in (A) included in (A) included in (A) (C) An estimate of the interest within rental expense 7,886 6,182 4,331 5,162 (D) Preference security dividend requirements of consolidated subsidiaries N/A N/A N/A N/A Additional Adjustments: External Interest (CMO's) -- -- 973 1,267 Amortization of discount and capitalized expense (CMO's) -- -- 86 136 ---------- ---------- ---------- ---------- TOTAL FIXED CHARGES $ 86,014 $ 71,699 $ 75,114 $ 65,336 ========== ========== ========== ========== EARNINGS ADD: (A) Pre-tax earnings 231,634 163,734 87,786 145,788 Add back: minority interest in consolidated subsidiaries 43,447 31,690 -- -- Adjust for income or loss from equity investees Subtract : CDC earnings (add back losses) (3,577) (925) (277) 727 Subtract : CXP earnings -- -- (25,628) (16,577) ---------- ---------- ---------- ---------- 271,504 194,499 61,881 129,938 (B) Add back: fixed charges 86,014 71,699 75,114 65,336 (C) Add back: Amortization of capitalized interest -- -- -- -- (D) Add back: distributed income of equity investee N/A N/A N/A N/A (E) Your share of pre-tax losses of equity investees for which charges arising from guarantees are included in fixed charges. -- -- -- -- ---------- ---------- ---------- ---------- 357,518 266,198 136,995 195,274 SUBTRACT (A) Capitalized Interest -- -- -- -- (B) Preference security dividend requirements of consolidated subsidiaries N/A N/A N/A N/A (C) Minority interest in pre-tax income of subsidiaries that have not incurred fixed charges -- -- -- -- NET EARNINGS $ 357,518 $ 266,198 $ 136,995 $ 195,274 ========== ========== ========== ========== RATIO 4.16 3.71 1.82 2.99
2 CENTEX CORPORATION CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES TRADITIONAL (Excluding CMO's and Savings and Loan)
QTR. ENDED QTR. ENDED YEAR ENDED 06/30/99 06/30/98 03/31/99 ---------- ---------- ---------- FIXED CHARGES (A) Interest Expensed and Capitalized 11,828 8,193 41,581 (B) Amortized Premiums, Discounts and capitalized interest related to indebtedness included in (A) included in (A) included in (A) (C) An estimate of the interest within rental expense 2,551 1,904 10,457 (D) Preference security dividend requirements of consolidated subsidiaries N/A N/A N/A ---------- ---------- ---------- TOTAL FIXED CHARGES $ 14,379 $ 10,097 $ 52,038 ========== ========== ========== EARNINGS ADD: (A) Pre-tax earnings 93,110 76,722 373,294 Add back: minority interest in consolidated subsidiaries 14,114 12,408 53,613 Adjust for income or loss from equity investees Subtract: Financial Services earnings (20,723) (23,712) (92,309) Subtract : CDC earnings (add back losses) (20) 346 (430) Subtract : CXP earnings -- -- -- Adjust for CFMC (earnings) loss (52) (50) (203) ---------- ---------- ---------- 86,429 65,714 333,965 (B) Add back: fixed charges 14,379 10,097 52,038 (C) Add back: Amortization of capitalized interest -- -- -- (D) Add back: distributed income of equity investee N/A N/A N/A (E) Your share of pre-tax losses of equity investees for which charges arising from guarantees are included in fixed charges. -- -- -- ---------- ---------- ---------- 100,808 75,811 386,003 SUBTRACT (A) Capitalized Interest -- -- -- (B) Preference security dividend requirements of consolidated subsidiaries N/A N/A N/A (C) Minority interest in pre-tax income of subsidiaries that have not incurred fixed charges -- -- -- ---------- ---------- ---------- TOTAL EARNINGS $ 100,808 $ 75,811 $ 386,003 ========== ========== ========== RATIO OF EARNINGS TO FIXED CHARGES 7.01 7.51 7.42 CENTEX CORPORATION CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES TRADITIONAL (Excluding CMO's and Savings and Loan) YEAR ENDED YEAR ENDED YEAR ENDED YEAR ENDED 03/31/98 03/31/97 03/31/96 03/31/95 ---------- ---------- ---------- ---------- FIXED CHARGES (A) Interest Expensed and Capitalized 33,256 34,062 40,862 33,014 (B) Amortized Premiums, Discounts and capitalized interest related to indebtedness included in (A) included in (A) included in (A) included in (A) (C) An estimate of the interest within rental expense 7,886 6,186 4,331 5,162 (D) Preference security dividend requirements of consolidated subsidiaries N/A N/A N/A N/A ---------- ---------- ---------- ---------- TOTAL FIXED CHARGES $ 41,142 $ 40,248 $ 45,193 $ 38,176 ========== ========== ========== ========== EARNINGS ADD: (A) Pre-tax earnings 231,634 163,734 87,786 145,788 Add back: minority interest in consolidated subsidiaries 43,447 31,690 -- -- Adjust for income or loss from equity investees Subtract: Financial Services earnings (31,371) (24,410) (17,155) (9,399) Subtract : CDC earnings (add back losses) (3,577) (925) (277) 727 Subtract : CXP earnings -- -- (25,628) (16,577) Adjust for CFMC (earnings) loss (191) (191) (15) (21) ---------- ---------- ---------- ---------- 239,942 169,898 44,711 120,518 (B) Add back: fixed charges 41,142 40,248 45,193 38,176 (C) Add back: Amortization of capitalized interest -- -- -- -- (D) Add back: distributed income of equity investee N/A N/A N/A N/A (E) Your share of pre-tax losses of equity investees for which charges arising from guarantees are included in fixed charges. -- -- -- -- ---------- ---------- ---------- ---------- 281,084 210,146 89,904 158,694 SUBTRACT (A) Capitalized Interest -- -- -- -- (B) Preference security dividend requirements of consolidated subsidiaries N/A N/A N/A N/A (C) Minority interest in pre-tax income of subsidiaries that have not incurred fixed charges -- -- -- -- ---------- ---------- ---------- ---------- TOTAL EARNINGS $ 281,084 $ 210,146 $ 89,904 $ 158,694 ========== ========== ========== ========== RATIO OF EARNINGS TO FIXED CHARGES 6.83 5.22 1.99 4.16
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