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FINAL
EXHIBIT 1.1
CENTEX CORPORATION
$400,000,000
Senior Medium-Term Notes, Series C
Subordinated Medium-Term Notes, Series C
Due 9 Months or More from Date of Issue
DISTRIBUTION AGREEMENT
January 27, 2000
Banc One Capital Markets, Inc.
1 Bank One Plaza, Suite IL1-0595
Chicago, Illinois 60670
Banc of America Securities LLC
100 North Tyron Street
Mail Code NC1-007-07-01
Charlotte, North Carolina 28255
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017-2070
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Morgan Stanley & Co., Incorporated
1585 Broadway
New York, New York. 10036
Warburg Dillon Read LLC
677 Washington Blvd.
Stamford, CT 06901
Ladies and Gentlemen:
Centex Corporation, a Nevada corporation (the "Company"), confirms its
agreement with each of you (individually, an "Agent" and collectively, the
"Agents") with respect to the issue
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and sale from time to time by the Company of its Senior Medium-Term Notes,
Series C (the "Senior Notes") and its Subordinated Medium-Term Notes, Series C
(the "Subordinated Notes"), each due 9 months or more from date of issue (the
Senior Notes and the Subordinated Notes are herein collectively referred to as
the "Notes"). The Senior Notes will be issued under a Senior Indenture (the
"Senior Indenture") dated as of October 1, 1998, as supplemented by a third
Supplemental Indenture thereto dated as of January 27, 2000, and the
Subordinated Notes will be issued under a Subordinated Indenture (the
"Subordinated Indenture") dated as of March 12, 1987, as supplemented by a sixth
Supplemental Indenture thereto dated as of January 27, 2000, as each may be
amended, supplemented or modified from time to time. The Senior Indenture and
the Subordinated Indenture are individually referred to herein as an "Indenture"
and collectively referred to herein as the "Indentures". The Indentures are each
between the Company and Chase Bank of Texas, National Association (formerly
Texas Commerce Bank National Association), as Trustee (the "Trustee").
As of the date hereof, the Company has authorized the issuance and sale
of up to $400,000,000 aggregate initial offering price of Notes to the Agents as
principal or through the Agents as agent pursuant to the terms of this
Agreement. It is understood, however, that the Company may from time to time
authorize the issuance and sale of additional Notes and that such additional
Notes may be sold to or through the Agents pursuant to the terms of this
Agreement, all as though the issuance and sale of such Notes were authorized as
of the date hereof.
If Notes are sold by the Company to an Agent as principal, such Agent
may purchase as principal for resale to investors and other purchasers in
accordance with the provisions of Section 2(a) hereof, and, if requested by such
Agent, the Company will enter into a Terms Agreement relating to such sale
(each, a "Terms Agreement"). If Notes are sold by the Company directly to
investors (as may from time to time be agreed to by the Company and an Agent),
such Agent will act as agent of the Company in soliciting purchases of the Notes
in accordance with the provisions of Section 2(b) hereof.
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes directly on its own
behalf, the Company hereby agrees that the Notes will be sold to or through the
Agents. The Company hereby appoints each Agent as its agent for the purpose of
soliciting and receiving offers to purchase Notes from the Company by others
and, on the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, each Agent severally and
not jointly agrees to use reasonable best efforts to solicit and receive offers
to purchase Notes upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify.
For purposes of this Agreement, all references to the Registration
Statement (as hereinafter defined), any preliminary prospectus, the Prospectus
(as hereinafter defined) or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Securities and Exchange
Commission (the "SEC") pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
1. Representations and Warranties. The Company represents and warrants
to and agrees with each Agent as of the date hereof, as of the date of each
acceptance by the Company of an offer to purchase Notes (whether to an Agent as
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principal or through an Agent as agent), as of the date of each delivery of
Notes (whether to an Agent as principal or through an Agent as agent) (the date
of each such delivery being hereinafter referred to as a "Settlement Date") and
as of each date the Registration Statement (as hereinafter defined) or the
Prospectus (as hereinafter defined) is amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rates,
redemption provisions, amortization schedules, maturities or other similar terms
offered on the Notes (whether pursuant to a term sheet or otherwise), and,
unless an Agent shall otherwise specify, other than by an amendment or
supplement which relates exclusively to an offering of debt securities other
than Notes) or there is filed with the SEC any document that is incorporated by
reference into the Registration Statement or the Prospectus (each of the times
referenced above being referred to as a "Representation Date"), as follows (it
being understood that such representations, warranties and agreements shall be
deemed to relate to the Registration Statement and the Prospectus, each as
amended or supplemented to each such date):
(a) The Company has filed with the SEC a registration statement (File
No. 333-94221) in respect of the Notes in the form heretofore delivered or to be
delivered to each Agent (the various parts of such registration statement, the
Prospectus, all exhibits thereto (other than the Statements of Eligibility under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") of a
corporation designated to act as Trustee, on Form T-1), each as amended, at the
time such registration statement or amendment thereto became effective, being
hereinafter collectively called the "Registration Statement") and the
Registration Statement (and any further registration statements which may be
filed by the Company for the purpose of registering additional Notes, including
any registration statement filed pursuant to Rule 462(b) of the regulations to
the Securities Act) in such form has been declared effective by the SEC and no
stop order suspending the effectiveness of the Registration Statement as amended
has been issued and no proceeding for that purpose has been initiated or
threatened by the SEC, and any requests on the part of the SEC for additional
information have been complied with (any preliminary prospectus included in the
Registration Statement as amended being hereinafter called a "Preliminary
Prospectus;" the prospectus relating to debt securities of the Company
registered pursuant to the Registration Statement (including the Notes) and the
prospectus supplement or term sheet relating to any particular issuance of
Notes, in the form in which it has most recently been filed, or transmitted for
filing, with the SEC on or prior to the date of this Agreement, being
hereinafter collectively called the "Prospectus", except that if any revised
Prospectus shall be provided to each Agent by the Company for use in connection
with the offering of the Notes which is not required to be filed by the Company
pursuant to Rule 424(b) under the Securities Act, the term "Prospectus" shall
refer to such revised prospectus from and after the time it is first provided to
each Agent for such use; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to the Registration Statement or any part thereof
shall be deemed to refer to and include any documents filed after the date of
the Registration Statement or any such part thereof under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference in such amendment or supplement; and any reference to the Prospectus,
as amended or supplemented, shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Notes in the form in which
it is first filed, or transmitted for filing, with the SEC pursuant to Rule 424
under the Securities Act, including any documents incorporated by
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reference therein as of the date of such filing or transmission; any references
to information "set forth in," "stated in," or "described in" the Registration
Statement or the Prospectus or references of like import shall include any
information contained in documents incorporated by reference therein);
(b) The documents incorporated by reference in the Registration
Statement, when they were filed or hereafter are filed with the SEC, conformed
or when so filed will conform, in all material respects to the requirements of
the Exchange Act and the rules and regulations of the SEC thereunder; and any
further documents so filed and incorporated by reference in the Prospectus, when
such documents are filed with the SEC, will conform in all material respects to
the requirements of the Exchange Act and the rules and regulations of the SEC
thereunder;
(c) Each part of the Registration Statement and the Prospectus
conformed, and as of the applicable Representation Date will conform, and any
amendments or supplements to the Registration Statement or the Prospectus will
conform, on the date of filing thereof with the SEC, in all material respects to
the requirements of the Securities Act and the Trust Indenture Act, as
applicable, and the rules and regulations of the SEC thereunder; the
Registration Statement and any amendment thereto, as of the applicable effective
date, did not and at each time thereafter at which any amendment to the
Registration Statement becomes effective and any Annual Report on Form 10-K is
filed by the Company with the SEC as of each Representation Date, will not,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; the Prospectus and any supplement thereto, as of the applicable
filing date, did not and as of each Representation Date will not, contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this section shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Agent expressly for use in the
Registration Statement or Prospectus. Each Preliminary Prospectus and the
Prospectus delivered to the Agents for use in connection with the offering of
the Notes was identical to the electronically transmitted versions thereof filed
with the SEC pursuant to EDGAR, except to the extent permitted by Regulation
S-T;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, resulting in an adverse effect on the business, assets, financial
position or prospects of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise set forth or contemplated in the
Prospectus: (i) there has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries; (ii) there has not
been any material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, assets, financial
position or prospects of the Company and its subsidiaries, taken as a whole;
(iii) no event has occurred that would result in a material write-down in
assets; (iv) there have been no material transactions entered into by the
Company, other than those publicly disclosed or in the ordinary course of
business; (v) the Company has not repurchased any of its
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outstanding capital stock; and (vi) there have been no dividends or
distributions of any kind declared, paid or made by the Company in respect of
its capital stock except for regular cash dividends paid in the ordinary course
of business;
(e) The Company and its subsidiaries have indefeasible title in fee
simple to all real property and indefeasible title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as are not
material to the business of the Company and its subsidiaries, taken as a whole;
and any real property and buildings held under lease by the Company and its
subsidiaries are held by them under leases that are valid, subsisting and in
full force and effect, with such exceptions as are not material to the business
of the Company and its subsidiaries, taken as a whole;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Nevada, and each
subsidiary of the Company has been duly incorporated as a corporation or
organized as a limited liability company, as the case may be, and is validly
existing as a corporation or limited liability company, as the case may be, in
good standing under the laws of its jurisdiction of incorporation or
organization, as the case may be; each of the Company and its subsidiaries has
full power and authority (corporate and other) to own its properties and conduct
its business as described, or incorporated by reference, in the Prospectus, and
has been duly qualified as a foreign corporation, or limited liability company,
as the case may be, for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction;
(g) The Company has an authorized capitalization as set forth, or as
incorporated by reference, in the Prospectus, and all of the outstanding shares
of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and nonassessable; and all of the outstanding shares of
capital stock or outstanding interests of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and nonassessable
and (except (i) for directors' qualifying shares, (ii) as set forth on Schedule
I hereto and (iii) as otherwise set forth in the Prospectus) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims affecting transferability or voting except as set forth in
the Prospectus;
(h) The Notes have been duly authorized, and, when executed,
authenticated, issued and delivered against payment therefor pursuant to this
Agreement, the Indentures and any applicable Terms Agreement with respect to
such Notes, such Notes will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles, and entitled to the benefits provided by the
applicable Indenture, which has been or will be incorporated by reference as an
exhibit to the Registration Statement; each Indenture has been duly authorized,
and when executed and delivered by the Company will constitute a valid and
legally binding instrument, enforceable against the Company in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Notes and the
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Indentures are substantially in the form heretofore delivered to each Agent and
will conform in all material respects to the descriptions thereof in the
Prospectus;
(i) The issue and sale of the Notes and the compliance by the Company
with all of the provisions of the Notes, the Remarketing Agreement between the
Company and any remarketing agent (the "Remarketing Agreement"), the Indentures,
this Agreement and any Terms Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Articles of Incorporation, as amended
or restated, or the Bylaws of the Company or any statute or order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issuance
and sale of the Notes or the consummation by the Company of the other
transactions contemplated by this Agreement or the Remarketing Agreement or any
Terms Agreement or the Indentures, except such as have been, or will have been
prior to any delivery of the Notes, obtained under the Securities Act and the
Trust Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Notes by the Agents;
(j) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries; and, to the best of
the Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(k) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act and the rules and regulations of
the SEC thereunder;
(l) The Company has no knowledge of any default in any material
obligation to be performed by any party to any agreement to which it or any of
its subsidiaries is a party, which default or defaults in the aggregate would
have a material adverse effect upon the business, assets, financial position, or
prospects of the Company and its subsidiaries, considered as a whole;
(m) The consolidated financial statements of the Company and its
subsidiaries, including accompanying notes, included or incorporated by
reference in the Registration Statement and the Prospectus, comply in all
material respects with the requirements of the Securities Act and fairly present
the consolidated financial position and the consolidated results of the
operations of the Company and its subsidiaries at the respective dates and for
the
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respective periods to which they apply, and such financial statements have been
prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved except as may be expressly
stated in the notes thereto. The financial information and statistical data set
forth in the Prospectus under the caption "Summary of Selected Financial Data"
are fairly presented and prepared on a basis consistent with such consolidated
financial statements or the books and records of the Company, as the case may
be, unless otherwise stated in the Prospectus;
(n) Except as described in the Prospectus, the Company and each of its
subsidiaries have all necessary licenses, certificates, consents, permits,
authorizations, approvals, rights and orders of and from all governmental
agencies or bodies having jurisdiction over the Company or any of its
subsidiaries to own their respective properties and conduct their respective
businesses as described in the Prospectus, the failure to possess or the failure
to operate in compliance with which would have a material adverse effect on the
business of the Company and its subsidiaries, taken as a whole, and the Company
has received no notice of proceedings relating to the revocation or modification
of any such certificate, authority or permit that, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would materially
adversely affect the business, assets, financial position or prospects of the
Company and its subsidiaries, taken as a whole;
(o) This Agreement has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
and any Terms Agreement with respect to the Notes, when executed and delivered
by the Company, will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject, in each
case, as to enforcement, to bankruptcy, insolvency, reorganization, and other
laws of general applicability relating to or affecting creditors' rights, and to
general equity principles, and except to the extent that rights of
indemnification hereunder may be limited by applicable laws or equity
principles;
(p) Except as described in the Prospectus, each of the Company and its
subsidiaries owns or possesses all of the patents, trademarks, service marks,
trade names, copyrights and licenses and rights with respect to the foregoing,
necessary for the present conduct of its business, without any known conflict
with the rights of others, the result of which conflict would materially and
adversely affect the business, assets, financial position or prospects of the
Company and its subsidiaries, taken as a whole;
(q) There are no contracts, indentures, mortgages, loan agreements,
notes, bonds, debentures, other evidences of indebtedness, leases or other
agreements or instruments of the Company of a character required to be described
or referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or referred to or
filed as required;
(r) No labor disturbance exists with the employees of the Company or
any of its subsidiaries, or, to the best of the Company's knowledge, is
imminent, that would result in a material adverse effect upon the Company and
its subsidiaries, taken as a whole, and the Company has not received notice of
any existing or imminent labor disturbance by the employees of any of its
principal suppliers, that might reasonably be expected to materially
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adversely affect the business, assets, financial position or prospects of the
Company and its subsidiaries, taken as a whole;
(s) The conditions to the use of a registration statement on Form S-3
under the Securities Act, as set forth in the General Instructions to Form S-3,
have been satisfied with respect to the Company and the Registration Statement
and Prospectus;
(t) The Remarketing Agreement, if applicable, has been duly and validly
authorized, executed and delivered by the Company and, assuming the Remarketing
Agreement has been duly authorized, executed and delivered by the Remarketing
Agent (as defined in the Prospectus), will be a valid and legally binding
agreement of the Company; and
(u) Neither the Company nor any of its subsidiaries is required to be
registered under the Investment Company Act of 1940, as amended.
Any certificate signed by any director or officer of the Company and
delivered to the Agents or their counsel in connection with an offering of Notes
to an Agent as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent as to the matters
covered thereby on the date of such certificate and at each Representation Date
subsequent thereto.
2. Purchases as Principal; Solicitations as Agent.
(a) No Agent shall have any obligation to purchase Notes from the
Company as principal, but an Agent may agree from time to time to purchase Notes
as principal. Each sale of Notes to an Agent as principal shall be made in
accordance with the terms of this Agreement, except as otherwise agreed by such
Agent and the Company, and, if requested by such Agent, the Company will enter
into a Terms Agreement that will provide for the sale of such Notes to and the
purchase thereof by such Agent. Each Terms Agreement will be either (i)
substantially in the form of Exhibit A (in the case of Senior Notes) or Exhibit
B (in the case of Subordinated Notes) hereto, (ii) in the form of an exchange of
any form of written telecommunication between an Agent and the Company or (iii)
an oral agreement between an Agent and the Company confirmed in writing by such
Agent to the Company.
Each agreement by an Agent to purchase Notes as principal (whether or
not set forth in a Terms Agreement) shall specify the principal amount of Notes
to be purchased by such Agent pursuant thereto, the maturity date of such Notes,
the price to be paid to the Company for such Notes, the interest rate and
interest rate formula, if any, applicable to such Notes and any other terms of
such Notes. Each such agreement shall also specify any requirement for officers'
certificates, opinions of counsel and letters from the independent public
accountants to the Company pursuant to Sections 5 and 6 hereto.
Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. With respect to each sale of Notes to an Agent as
principal that is not made pursuant to a Terms Agreement, the procedural details
relating to the issue and delivery of such Notes and the payment therefor shall
be as set forth in the Administrative Procedures (as hereinafter defined).
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Each purchase of Notes by an Agent as principal, unless otherwise
agreed, shall be at a discount from the principal amount of each such Note
equivalent to the applicable commission set forth in Subsection (b) hereof. Each
Agent may engage the services of any other broker or dealer in connection with
the resale of any Notes purchased by such Agent as principal and may allow all
or any portion of the discount received in connection with such purchases from
the Company to such brokers and dealers.
(b) If agreed upon by an Agent and the Company, such Agent, acting
solely as agent for the Company and not as principal, will solicit purchasers of
the Notes. In connection with the Agents' actions as agents hereunder, each
Agent agrees to use reasonable best efforts to solicit offers to purchase Notes
from the Company upon the terms and conditions set forth in the Prospectus (and
any supplement thereto) and in the Administrative Procedures. In soliciting
offers to purchase the Notes as agents, each Agent is acting solely as an agent
for the Company, and not as a principal, and does not assume any obligation
toward or relationship of agency or trust with any purchaser of Notes. Each
Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by such Agent and accepted by the Company, but no Agent shall have any liability
to the Company in the event any such purchase is not consummated for any reason.
If the Company shall default in its obligations to deliver Notes to a purchaser
whose offer it has accepted, the Company shall hold each Agent harmless against
any loss, claim, damage or liability arising from or as a result of such default
and shall, in particular, pay to each Agent the commission each Agent would have
received had such sale been consummated.
The Company may appoint additional agents in connection with the
offering of the Notes; provided that (i) the Company promptly notifies each
Agent of such appointment and (ii) the commission paid to any such additional
agent with respect to the sale of Notes by the Company as a result of a
solicitation made by such additional agent is the same as that percentage
specified below of the aggregate principal amount of such Notes sold by the
Company; and provided further that, unless the appointment of such additional
agent is expressly limited to the solicitation of offers to purchase a specified
principal amount of Notes on specified terms, such additional agent enters into
an agreement with the Company making such agent an Agent under this Agreement or
enters into an agreement with the Company on terms which are substantially
similar to those contained in this Agreement, which agreement shall include
appropriate changes to reflect the arrangements between the Company and such
additional agent. The Company may from time to time offer Notes for sale
otherwise than through an Agent.
No Agent is authorized to appoint sub-agents with respect to Notes sold
through an Agent as agent.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes (other than Notes held by the Agents
that were purchased from the Company as principal). As soon as practicable after
receipt of instructions from the Company, each Agent will forthwith suspend
solicitations of offers to purchase Notes from the Company until such time as
the Company has advised the Agents that such solicitation may be resumed. While
such solicitation is suspended, the Company shall not be required to deliver any
certificates, opinion or letter in accordance with Sections 6(a), (b) and (c);
provided, however, that if the Registration Statement or the Prospectus is
amended or supplemented during the period of suspension (other than by an
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amendment or supplement providing solely for a change in the interest rates of
the Notes or for a change the Agents deem to be immaterial), no Agent shall be
required to resume soliciting offers to purchase Notes until the Company has
delivered such certificates, opinions and letters an Agent may request. The
Company also reserves the right to sell Notes directly to purchasers in those
jurisdictions in which it is authorized to do so.
Except as otherwise agreed, the Company agrees to pay to each Agent, as
consideration for the sale of each Note resulting from a solicitation made or an
offer to purchase received by such Agent, a commission in the form of a discount
from the purchase price of such Note equal to the following percentage of the
principal amount of such Note:
Term* Commission Rate
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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.
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* 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.
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(c) The Company and each Agent agree that any Notes purchased by an
Agent shall be purchased, and any Notes the placement of which an Agent arranges
as agent shall be placed by such Agent, in reliance on the representations,
warranties, agreements and covenants of the Company contained herein and on the
terms and conditions and in the manner provided herein.
(d) The purchase price, interest rate or formula, maturity date and
other terms of the Notes (as applicable) shall be agreed upon by the Company and
each Agent and specified in a pricing supplement to the Prospectus (each, a
"Pricing Supplement") to be prepared in connection with each sale of Notes.
Except as otherwise specified in the applicable Pricing Supplement, the Notes
will be issued in denominations of U.S. $1,000, except for Remarketed Notes
which will be issued in minimum denominations of $100,000, or any larger amount
that is an integral multiple thereof. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (attached hereto as
Exhibit C) (the "Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company, each Agent and the Trustee. The Company will furnish to the Trustee a
copy of the Administrative Procedures as from time to time in effect. The
Company agrees to cause the Trustee to agree to perform the duties and
obligations specifically provided to be performed by the Trustee in such
Administrative Procedures.
3. Agreements. The Company agrees with each Agent that:
(a) The Company will notify each Agent immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the SEC for filing of any amendment or
supplement to the Prospectus or any document to be filed pursuant to the
Exchange Act which will be incorporated by reference in the Prospectus (other
than any amendment, supplement or document relating solely to securities other
than the Notes), (iii) the receipt of any comments from the SEC with respect to
the Registration Statement or the Prospectus, (iv) any request by the SEC for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will give each Agent notice of its intention to file or
prepare any additional registration statement with respect to the registration
of additional Notes, any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (other than an amendment or supplement
providing solely for a change in the interest rates or formula applicable to the
Notes or relating solely to the issuance and/or offering of securities other
than the Notes), whether by the filing of documents pursuant to the Exchange
Act, the Securities Act or otherwise, and will furnish each Agent with copies of
any such amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or preparation, as
the case may be, and will not file any such amendment or supplement or other
documents in a form to which an Agent or its counsel shall reasonably object.
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(c) The Company will deliver to the Agents as many signed and conformed
copies of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus as the Agents shall reasonably request so long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(d) The Company will prepare, with respect to any Notes to be sold to
or through an Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by such Agent and will file
such Pricing Supplement pursuant to Rule 424(b)(3) under the Securities Act not
later than the close of business of the SEC on the second business day after the
date on which such Pricing Supplement is first used.
(e) Except as otherwise provided in subsection (m) of this Section, if
at any time during the term of this Agreement any event shall occur or condition
exist as a result of which it is necessary, in the reasonable opinion of your
counsel or counsel for the Company, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of either such counsel, to amend or
supplement the Registration Statement or the Prospectus in order to comply with
the requirements of the Securities Act or the regulations to the Securities Act,
immediate notice shall be given, and confirmed in writing, to each Agent to
cease the solicitation of offers to purchase the Notes in such Agent's capacity
as agent and to cease sales of any Notes an Agent may then own as principal
pursuant to an agreement by such Agent to purchase Notes as principal, and the
Company will promptly prepare and file with the SEC such amendment or
supplement, whether by filing documents pursuant to the Exchange Act, the
Securities Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and Prospectus
comply with such requirements.
(f) Except as otherwise provided in subsection (m) of this Section, if
reasonably requested by an Agent, on or prior to the date on which there shall
be released to the general public interim financial statement information
related to the Company with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with respect to any
fiscal year, the Company shall, to the extent lawful under the rules and
regulations of the SEC, furnish such information to such Agent, confirmed in
writing. The Company shall cause the Prospectus to be amended or supplemented to
include or incorporate by reference financial information with respect thereto
and corresponding information for the comparable period of the preceding fiscal
year, as well as such other information and explanations as shall be necessary
for an understanding thereof or as shall be required by the Securities Act or
the regulations to the Securities Act.
(g) Except as otherwise provided in subsection (m) of this Section, if
reasonably requested by an Agent, on or prior to the date on which there shall
be released to the general public financial information included in or derived
from the audited financial statements of the Company for the preceding fiscal
year, the Company shall furnish, to the extent lawful under the rules and
regulations of the SEC, such information to such Agent, confirmed in writing,
and shall
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cause the Registration Statement and the Prospectus to be amended or
supplemented, whether by the filing of documents pursuant the Exchange Act, the
Securities Act or otherwise, to include or incorporate by reference such audited
financial statements and the report or reports, and consent or consents to such
inclusion or incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as shall be
required by the Securities Act or the Securities Act Regulations.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 under the Securities Act) covering each twelve-month period beginning,
in each case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the Registration
Statement with respect to each sale of Notes.
(i) The Company will endeavor, in cooperation with the Agents, to
qualify the Notes for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as the Agents may
designate, and will maintain such qualifications in effect for as long as may be
required for the distribution of the Notes; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as may be required
by the laws of each jurisdiction in which the Notes have been qualified as above
provided. The Company will promptly advise the Agents of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(j) The Company, during the period when a Prospectus is required to be
delivered under the Securities Act or the Exchange Act, will file promptly all
documents required to be filed with the SEC pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act within the time periods prescribed by the Exchange
Act and the Exchange Act Regulations.
(k) During the term of this Agreement, the Company shall furnish to the
Agents such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Prospectus, any amendments or supplements thereto,
the Indentures, the Notes, this Agreement, any Terms Agreement, the
Administrative Procedures and the performance by the Company of its obligations
hereunder or thereunder as the Agents may from time to time reasonably request
and shall notify the Agents promptly in writing of any change in the rating
accorded any of the Company's debt securities by any "nationally recognized
statistical rating organization", as such term is defined for purposes of Rule
436(g)(2) under the Securities Act or the public announcement by any nationally
recognized statistical rating organization that it has under surveillance or
review, with possible negative implications, its rating of any debt securities
of the Company.
(l) Between the date of any agreement by an Agent to purchase Notes as
principal and the Settlement Date with respect to such agreement, the Company
will not, without such Agent's prior consent (which consent will not be
unreasonably withheld), offer or sell, or enter
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into any agreement to sell, any debt securities of the Company (other than the
Notes that are to be sold pursuant to such agreement and bank borrowings and
commercial paper in the ordinary course of business), except as may otherwise be
provided in such agreement.
(m) The Company shall not be required to comply with the provisions of
subsection (e), (f) or (g) of this Section during any period from the time (i)
an Agent shall have suspended solicitation of purchases of the Notes in its
capacity as agent pursuant to a request from the Company and (ii) an Agent shall
not then hold any Notes as principal purchased pursuant to an agreement by such
Agent to purchase Notes as principal, to the time the Company shall determine
that solicitation of purchases of the Notes should be resumed or shall
subsequently enter into a new agreement with such Agent for such Agent to
purchase Notes as principal.
4. Payment of Expenses. The Company covenants and agrees with the
Agents that the Company will pay or cause to be paid all expenses incident to
the performance of its obligations under this Agreement including:
(i) the preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(ii) the preparation, filing and reproduction of this Agreement
and any Terms Agreements;
(iii) the preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(iv) the fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel, and of any Calculation
Agent;
(v) the reasonable fees and disbursements of your counsel
incurred in connection with the establishment of the program relating
to the Notes and incurred from time to time in connection with the
transactions contemplated hereby;
(vi) the qualification of the Notes under state securities laws
in accordance with the provisions of Section 3(h) hereof, including
filing fees and the reasonable fees and disbursements of your counsel
in connection therewith and in connection with the preparation of any
Blue Sky Survey and any Legal Investment Survey;
(vii) the preparation and delivery to each Agent in quantities
as hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by each Agent of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(viii) the preparation, reproducing and delivery to each Agent
of copies of the Indentures and all supplements and amendments thereto;
(ix) any fees charged by rating agencies for the rating of the
Notes;
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(x) the fees and expenses incurred in connection with the
listing of the Notes on any securities exchange if the Company agrees
to list the Notes;
(xi) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
(xii) any advertising and other out-of-pocket expenses an Agent
incurs with the approval of the Company; and
(xiii) the cost of providing any CUSIP or other identification
numbers for the Notes.
It is understood, however, that, except as provided in this Section and
Section 7 hereof, each Agent will pay all of its own costs and expenses,
transfer taxes on resale of any of the Notes by an Agent, and any advertising
expenses connected with any offers an Agent may make as principal.
5. Conditions of Obligations. The obligation of the Agents to purchase
Notes as principal pursuant to any Terms Agreement or otherwise, the Agents'
obligation to solicit offers to purchase Notes as agent of the Company and the
obligation to purchase Notes of any purchaser of Notes sold through an Agent as
agent will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to the provisions
hereof and to the performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and observed (in the
case of an Agent's obligation to solicit offers to purchase Notes, at the time
of such solicitation and, in the case of an Agent's or any other purchaser's
obligation to purchase Notes, at the time the Company accepts the offer to
purchase such Notes and at the time of purchase) and (in each case) to the
following additional conditions precedent:
(a) At the time of such solicitation in the case of (i), (ii) and (v)
below, or the time of such purchase, with respect to (i) to (v), as the case may
be:
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations, of the
Company and its subsidiaries, taken as a whole, from that set forth in
the Registration Statement (exclusive of any amendment thereto filed
with the SEC after the date of the Terms Agreement (in the case of a
purchase of Notes by an Agent as principal) or after the date upon
which the purchaser became obligated to purchase the Notes (in the case
of a purchase of Notes through an Agent as agent)) that, in each
Agent's reasonable judgment, is material and adverse and that makes it,
in each Agent's reasonable judgment, impracticable to market the Notes
except, in the case of any purchase of Notes, as disclosed to each
Agent in writing by the Company before an Agent or such other purchaser
accepted the offer to purchase such Notes.
(ii) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the SEC; and
all requests for additional information on the part of the SEC shall
have been complied with to each Agent's reasonable satisfaction.
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(iii) There shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be,
the New York Stock Exchange, the American Stock Exchange or the
National Association of Securities Dealers, Inc., (B) suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market, (C) declaration of a general moratorium on
commercial banking activities in New York or Texas by either federal,
New York State or Texas authorities or declaration of a banking
moratorium by the relevant authorities in the country or countries of
origin of foreign currency or currencies in which the Notes are
denominated or payable or (D) outbreak or escalation of hostilities or
change in financial markets or any calamity or crisis that, in each
Agent's judgment, is material and adverse and, in the case of any of
the events described in clauses (iii)(A) through (D), such event,
singly or together with any other such event, makes it, in each Agent's
judgment, impracticable to market the Notes or to enforce contracts for
the sale of the Notes on the terms and in the manner contemplated in
the Prospectus, as amended or supplemented, except, in the case of any
purchase of Notes, for any such event occurring before the Company
accepted the offer to purchase such Notes.
(iv) The rating assigned by any "nationally recognized
statistical rating organization", as that term is defined for purposes
of Rule 436(g)(2) under the Securities Act, to any debt securities of
the Company shall not have been lowered nor shall any such rating
agency have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any debt
securities of the Company.
(v) There shall have not come to an Agent's attention any facts
which would cause such Agent to believe that the Prospectus, at the
time it was required to be delivered to a purchaser of Notes, included
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at the time of delivery, not misleading. As used
in this clause, "Prospectus" means the Prospectus in the form first
provided to each Agent for use in confirming sales of the related
Notes.
(b) On the date hereof and, if called for by any agreement by an Agent
to purchase Notes as principal, on the corresponding Settlement Date, each Agent
shall have received:
(A) The opinion, dated as of such date, of Raymond G. Smerge,
Executive Vice President, Chief Legal Officer and Secretary (as to (i)
through (vi) and (ix), (x) and (xiii) below) and Baker Botts L.L.P,
special counsel for the Company (as to (vii), (viii), (xi), (xii),
(xiv) and (xv) below) to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Nevada, with full corporate power and authority
to own its properties and conduct its business as described in
the Prospectus and to perform its obligations under this
Agreement;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, as amended or supplemented, and all
of the outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid
and nonassessable;
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(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which the
failure to so qualify would have a material adverse effect
upon the Company and its subsidiaries, taken as a whole (such
counsel being entitled to rely in respect of the opinion in
this clause upon certificates issued by various state
authorities as deemed necessary by such counsel);
(iv) Each subsidiary of the Company has been duly
incorporated or organized as a limited liability company and
is validly existing as a corporation or limited liability
company, as the case may be, in good standing under the laws
of its jurisdiction of incorporation or organization, as the
case may be, except where the failure to be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; each subsidiary of the
Company has been duly qualified as a foreign corporation or
limited liability company, as the case may be, for the
transaction of business and is in good standing under the laws
of each jurisdiction in which the failure to so qualify would
have a material adverse effect upon the Company and its
subsidiaries, taken as a whole (such counsel being entitled to
rely in respect of the opinion in this clause upon
certificates issued by various state authorities as deemed
necessary by such counsel); and all of the outstanding shares
of capital stock or outstanding interests of each such
subsidiary have been duly and validly authorized and issued,
are fully paid and nonassessable, and (except (i) for
directors' qualifying shares, (ii) as set forth in Schedule I
hereto, and (iii) as otherwise set forth in the Prospectus)
are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims affecting
transferability or voting;
(v) To the best of such counsel's knowledge and other than
as set forth or contemplated, or incorporated by reference, in
the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject which, individually or in the
aggregate, could reasonably be expected to have a material
adverse effect on the business, assets, financial position or
prospects of the Company and its subsidiaries, taken as a
whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) This Agreement and any applicable Terms Agreement
with respect to the Notes have been duly authorized, executed
and delivered by the Company.
(vii) The Notes, in the form(s) certified by the Company
as of the date hereof, will be duly authorized for issuance,
offer and sale pursuant to this Agreement when the Pricing
Committee of the Board of Directors of the Company has fixed
and determined the terms of the Notes to be issued and sold
and the Notes, when authorized as aforesaid and when issued,
authenticated and delivered in accordance with this Agreement,
any applicable Terms Agreement and the applicable Indenture
and duly paid for by the purchasers thereof in accordance with
this Agreement, any applicable Terms Agreement and the
applicable Indenture, will constitute valid and legally
binding obligations of the
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Company entitled to the benefits provided by the applicable
Indenture and enforceable against the Company in accordance
with their respective terms, subject to the Enforceability
Exceptions (as hereinafter defined); and the Notes and the
Indentures conform in all material respects to the
descriptions thereof under the captions "Description of Notes"
and "Description of Debt Securities" in the Prospectus;
(viii) Each of the Indentures has been duly authorized,
executed and delivered by the Company and (assuming the due
authorization, execution and delivery of each such Indenture
by the Trustee) constitutes a valid and legally binding
instrument enforceable against the Company in accordance with
its terms, subject to the Enforceability Exceptions; and each
of the Indentures has been qualified under the Trust Indenture
Act;
(ix) The Remarketing Agreement, if applicable, has been
duly and validly authorized, executed and delivered by the
Company and, assuming the Remarketing Agreement has been duly
authorized, executed and delivered by the Remarketing Agent,
will be a valid and legally binding agreement of the Company;
(x) The issue and sale of the Notes and the compliance by
the Company with all of the provisions of the Notes, any
Remarketing Agreement, if applicable, the Indentures, and this
Agreement and any applicable Terms Agreement and the
consummation of the transactions herein and therein
contemplated will not violate or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, except for any such violation, breach
or default that would not have a material adverse effect on
the Company and its subsidiaries taken as a whole, nor will
such action result in any violation of the provisions of the
Articles of Incorporation, as amended or restated, or the
Bylaws of the Company or any statute or order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties;
(xi) To such counsel's knowledge, no consent, approval,
authorization, order, registration or qualification of or with
any court or governmental agency or body of the United States
of America or the States of Texas or Nevada is required for
the performance by the Company of its obligations under this
Agreement, for the issue and sale of the Notes or the
consummation of the other transactions contemplated by this
Agreement, any Terms Agreement, the Remarketing Agreement or
the Indentures, except such as have been obtained under the
Securities Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Notes by
or through each Agent;
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(xii) To such counsel's knowledge, no proceedings for a
stop order with respect to the Registration Statement are
pending or threatened under the Securities Act;
(xiii) The documents incorporated by reference in the
Prospectus, as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the SEC, as the case may be, and
as of the date this opinion is delivered, complied as to form
in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the SEC thereunder; nothing has come
to the attention of such counsel that would cause such counsel
to believe that any of such documents, when they became
effective or were so filed, as the case may be (other than the
financial statements and related schedules therein, as to
which such counsel need express no belief), and as of the date
this opinion is delivered contained, in the case of a
registration statement that became effective under the
Securities Act, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein not misleading, and, in the case of
other documents that were filed under the Securities Act or
the Exchange Act with the SEC, an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made when such documents
were so filed, not misleading; and such counsel does not know
of any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus
or required to be described in the Registration Statement or
the Prospectus that are not filed or incorporated by reference
or described as required; and
(xiv) The Registration Statement and the Prospectus, as
amended or supplemented, if applicable (except for (1) the
financial statements (including the notes thereto and the
auditors' reports thereon) included or incorporated by
reference therein, and (2) the other financial information
included or incorporated by reference therein, as to which
such counsel need express no opinion) appear on their face to,
comply as to form in all material respects with the Securities
Act and the rules and regulations of the SEC thereunder; and
(xv) Such counsel shall also state, in a separate
paragraph, the following: "such counsel has participated in
conferences with officers and other representatives of the
Company, representatives of the independent public accountants
of the Company and your representatives at which the contents
of the Registration Statement and the Prospectus and related
matters were discussed. Although such counsel did not
independently verify, is not passing upon, and does not assume
any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement and
the Prospectus or the responsiveness of such statements to
legal requirements (except to the extent stated in the last
clause of paragraph (vii) and paragraph (xiv) above), such
counsel advises you that, on the basis of the foregoing
(relying in part as to materiality upon officers and other
representatives of the Company), no facts have
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come to such counsel's attention which lead such counsel to
believe that the Registration Statement (other than (i) the
financial statements (including the notes thereto and the
auditors' reports thereon) included therein, and (ii) the
other financial information included therein, as to which such
counsel has not been asked to comment), as of the time it
became effective (or if an amendment to the Registration
Statement or an Annual Report on Form 10-K has been filed by
the Company with the SEC subsequent to the effectiveness of
the Registration Statement, then at the time such amendment
became effective or at the time of the most recent such
filing, as the case may be), contained any untrue statement of
a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (other than (i)
the financial statements (including the notes thereto and the
auditors' report thereon) included therein and (ii) the other
financial information included therein, as to which such
counsel has not been asked to comment), as of the issue date
thereof and as of the date of such counsel's letter, contained
or contains any untrue statement of a material fact or omitted
or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading."
"Enforceability Exceptions" shall mean (i) applicable
bankruptcy, receivership, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer and other similar laws relating to or affecting
the enforcement of the rights and remedies of creditors or parties to executory
contracts generally; (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity) and the
exercise of equitable powers by a court of competent jurisdiction (and no
opinion need be given as to the availability of any specific equitable relief or
equitable remedies); and (iii) applicable law or public policy limiting the
enforcement of provisions providing for the indemnification of a party.
(B) The opinion, dated as of such date, of Milbank, Tweed,
Hadley & McCloy LLP, your special counsel, covering the incorporation
of the Company, the validity of the Remarketing Agreement, if
applicable, the Indentures, the Notes, the Registration Statement, the
Prospectus, as amended or supplemented, and other related matters as
the Agents may reasonably request.
(c) On the date hereof and, if called for by any Terms Agreement, on
the corresponding Settlement Date, each Agent shall have received a certificate,
dated as of the date hereof or the Settlement Date, as the case may be, signed
by (i) the Chairman, Vice Chairman, President or any Vice President and (ii) the
Chief Financial Officer or Treasurer of the Company to the effect that (x) the
representations and warranties of the Company contained herein are true and
correct as of such date and the Company has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or satisfied on
or before such date and (y) none of the conditions referred to in Section 5(a)
exist.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(d) On the date hereof and, if required by any Terms Agreement, on the
corresponding Settlement Date, the Company's independent public accountants
shall have
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furnished to the Agents a letter or letters, dated as of the date hereof or such
Settlement Date, as the case may be, in form and substance satisfactory to the
Agents containing statements and information of the type ordinarily included in
accountant's "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
(e) On the date hereof and on each Settlement Date, the Company shall
have furnished to the Agents such appropriate further information, certificates,
documents and opinions as the Agents may reasonably request or as the Agents'
counsel may reasonably require for purposes of rendering the opinion referred to
in Section 5(b)(B) and in order to evidence the accuracy and completeness of any
of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Notes as herein contemplated shall be
reasonably satisfactory in form and substance to each Agent and its counsel.
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, as amended or supplemented, any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus, as amended
or supplemented, there shall not have been any material change in the capital
stock, outstanding interests (other than through exercise of employee stock
options) or long-term debt of the Company and any of its subsidiaries, taken as
a whole (other than borrowings and repayments made in the ordinary course of
business), or any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position, stockholders
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or delivery of the Notes on the terms and in the manner
contemplated in the Prospectus, as amended or supplemented;
(g) Subsequent to the date of any Terms Agreement relating to the
Notes, the rating assigned by any "nationally recognized statistical rating
organization," as that term is defined for purposes of Rule 436(g)(2) under the
Securities Act, to any debt securities of the Company shall not have been
lowered nor shall any such rating agency have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of the Company;
(h) Subsequent to the date of any Terms Agreement relating to the
Notes, there shall not have occurred any of the following: (i) a suspension or
material limitation in trading generally on or by, as the case may be, the New
York Stock Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc.; (ii) a suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iii) a declaration
of a general moratorium on commercial banking activities in New York or Texas by
either federal, New York State or Texas authorities or declaration of a banking
moratorium by the relevant authorities in the country or countries of origin of
foreign currency or currencies in
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which the Notes are denominated or payable or (iv) outbreak or escalation of
hostilities or change in financial markets or any calamity or crisis that, in
the judgment of any Agent or Agents that is or are a party or parties to such
Term Agreement, is material and adverse and, in the case of any of the events
described in these clauses (h)(i) through (iv), such event, singly or together
with any other such event, makes it in the judgment of any such Agent or Agents,
impracticable or inadvisable to proceed with the public offering or the delivery
of the Notes on the terms and in the manner contemplated in the Prospectus, as
amended or supplemented.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, the Agents may terminate this
Agreement by notice to the Company at any time and any such termination shall be
without liability to the Company, except that the provisions of Sections 3(i),
4, 7, 8, 11, 12, and 15 shall remain in effect.
6. Additional Agreements of the Company. (a) Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules, maturities or other
similar terms offered on the Notes (whether pursuant to a term sheet or
otherwise), or for a change the Agents deem to be immaterial, and, unless the
Agents shall otherwise specify, other than by an amendment or supplement which
relates exclusively to an offering of debt securities other than the Notes) or
(ii) there is filed with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating exclusively to
the issuance of debt securities under the Registration Statement, unless the
Agents shall otherwise specify) or (iii) (if required pursuant to the terms of
an agreement by an Agent to purchase Notes as principal) the Company sells Notes
to an Agent pursuant to an agreement by such Agent to purchase Notes as
principal or (iv) the Company sells Notes in a form not previously certified to
the Agents by the Company, the Company shall furnish or cause to be furnished to
each Agent forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to each Agent to the
effect that the statements contained in the certificate referred to in Section
5(c) hereof which were last furnished to such Agent are true and correct at the
time of such amendment, supplement, filing or sale, as the case may be, as
though made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(c), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(b) Each time that (i) the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption provisions,
amortization schedules, maturities or other similar terms offered on the Notes
(whether pursuant to a term sheet or otherwise) or for a change the Agents deem
to be immaterial, and, unless the Agents shall otherwise specify, other than by
an amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes) or (ii) there is filed with the SEC any
document incorporated by reference into the Prospectus (other than any Current
Report on Form 8-K or Quarterly Report on Form 10-Q, unless the Agents shall
reasonably request, as a result of any material development described in such
reports), or (iii) (if required pursuant to the terms of an agreement by an
Agent to purchase
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Notes as principal) the Company sells Notes to an Agent pursuant to an agreement
by such Agent to purchase Notes as principal or (iv) the Company sells Notes in
a form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished forthwith to each Agent and to its counsel a
written opinion of Baker Botts L.L.P., special counsel for the Company or other
counsel satisfactory to the Agents, and an opinion of Raymond G. Smerge,
Executive Vice President, Chief Legal Officer and Secretary of the Company,
dated the date of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form and substance satisfactory to the Agents, of the same tenor as their
respective opinions referred to in Section 5(b)(A) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion; or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agents with a letter to the effect that the Agents may rely on such last opinion
to the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance).
(c) Each time that (i) the Registration Statement or the Prospectus
shall be amended or supplemented to include additional financial information
unless the Agents shall otherwise specify, other than an amendment or supplement
which relates exclusively to an offering of debt securities other than the Notes
or there is filed with the SEC any document incorporated by reference into the
Prospectus which contains additional financial information or (ii) (if required
pursuant to the terms of any agreement by an Agent to purchase Notes as
principal) the Company sells Notes to an Agent pursuant to any agreement by such
Agent to purchase Notes as principal, the Company shall cause its independent
public accountants forthwith to furnish each Agent a letter, dated the date of
effectiveness of such amendment, supplement or document with the SEC, or the
date of such sale, as the case may be, in form satisfactory to each Agent, of
the same tenor as the letter referred to in Section 5(d) hereof but modified to
relate to the Registration Statement and the Prospectus, as amended and
supplemented to the date of such letter.
7. Indemnification.
(a) Indemnification of the Agent. The Company agrees to indemnify and
hold each Agent and each person, if any, who controls each Agent within the
meaning of Section 15 of the Securities Act harmless as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, unless such untrue statement or omission or such
alleged untrue statement or omission was made in reliance upon and in
conformity with information furnished to the Company in writing by each
Agent expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment
23
24
or supplement thereto) or in reliance upon the Trustee's Statement of
Eligibility and Qualification under the Trust Indenture Act of 1939
filed as an exhibit to the Registration Statement;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by the
Agents) reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above.
(b) Indemnification of Company. Each Agent agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with information furnished to the Company in writing by such Agent
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. Upon such notice, an
indemnifying party may participate at its own expense and, to the extent that it
wishes, jointly with any other indemnifying party, similarly notified, and may
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. In any proceeding where the indemnifying party has assumed
the defense thereof, the indemnifying party shall be liable to the indemnified
party for any legal or other expenses previously incurred by such indemnified
party in connection with the defense thereof and for reasonable costs of
investigation subsequently incurred. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual differing interests between them. In no event
shall the indemnifying parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in
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25
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 7 or Section 8 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
8. Contribution.
(a) If the indemnification provided for in Section 7 is unavailable to
an indemnified party or insufficient in respect of any losses, claims, damages
or liabilities referred to therein in connection with any offering of Notes,
then each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Agents on the other
from the offering of such Notes or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Agents on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Agents on the other in connection with the offering of such Notes shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of such Notes (before deducting expenses) received by the
Company bear to the total discounts and commissions received by the Agents in
respect thereof. The relative fault of the Company and of each Agent shall be
determined by reference to, among other things, whether the untrue or allegedly
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or by the Agents on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(b) The Company and each Agent agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (a) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (a) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes referred to in paragraph (a)
above that were offered and sold to the public through such Agent exceeds the
amount of any damages that such Agent would have otherwise been required to pay
by reason of such untrue or allegedly untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the
25
26
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Each Agent's obligation to
contribute pursuant to this Section 8 is several, in proportion to the
respective principal amounts of Notes referred to in paragraph (a) above
purchased or sold by each Agent, and not joint. The remedies provided for in
this Section 8 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
9. Termination.
(a) This Agreement may be terminated at any time either by the Company
or by an Agent with respect to such Agent upon the giving of 30 days' written
notice of such termination to the other party hereto. The termination of this
Agreement shall not require termination of any agreement by an Agent to purchase
Notes as principal, and the termination of any such agreement shall not require
termination of this Agreement.
(b) An Agent may terminate any agreement to purchase Notes from the
Company as principal, immediately upon notice to the Company, at any time prior
to the Settlement Date relating thereto, if (i) there has been, since the date
of such agreement or since the respective dates as of which information is given
in the Prospectus, any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, whether or not arising in the ordinary course of business, or
(ii) a stop order suspending the effectiveness of the Registration Statement
shall have been issued or a proceeding for that purpose shall have been
initiated or threatened by the SEC, or (iii) there shall have occurred any (A)
suspension or material limitation of trading generally on or by, as the case may
be, the New York Stock Exchange, the American Stock Exchange or the National
Association of Securities Dealers, Inc., (B) suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market, (C)
declaration of a general moratorium on commercial banking activities in New York
or Texas by either federal, New York State or Texas authorities or declaration
of a banking moratorium by the relevant authorities in the country or countries
of origin of foreign currency or currencies in which the Notes are denominated
or payable or (D) any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in an Agent's reasonable
judgment, is material and adverse and, in the case of any of the events
described in clauses (iii)(A) through (D), such event, singly or together with
any other such event, makes it, in an Agent's judgment, impracticable or
inadvisable to proceed with the public offering or the delivery of the Notes on
the terms and in the manner contemplated by the Prospectus, as amended or
supplemented, or (iv) the rating assigned by any "nationally recognized
statistical rating organization", as such term is defined for purposes of Rule
436(g)(2) under the Securities Act, to any debt securities of the Company as of
the date of such agreement shall have been lowered since that date or if any
such rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
debt securities of the Company, or (v) there shall have come to an Agent's
attention any facts that would cause such Agent to believe that the Prospectus,
at the time it was required to be delivered to a purchaser of Notes, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
existing at the time of such delivery, not misleading. As used in this Section,
the term "Prospectus" means the Prospectus in the form first provided to each
Agent for use in confirming sales of the related Notes.
26
27
(c) In the event of any such termination, neither the Company nor an
Agent as to which this Agreement has been terminated will have any liability to
each other, except that (i) an Agent terminating this Agreement shall be
entitled to any commission earned in accordance with the fifth paragraph of
Section 2(b) hereof, (ii) if at the time of termination (a) an Agent shall own
any Notes purchased pursuant to any agreement by such Agent to purchase Notes as
principal with the intention of reselling them or (b) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has not occurred,
the covenants set forth in Sections 2(d), 3 and 6 hereof shall remain in effect
until such Notes are so resold or delivered, as the case may be, and (iii) the
provisions of Sections 3(h) and 4 hereof, the indemnity and contribution
agreements set forth in Sections 7 and 8 hereof, and the provisions of Sections
11, 13 and 15 hereof shall remain in effect.
10. Failure to Purchase. If the Company and two or more Agents enter
into an agreement pursuant to which such Agents agree to purchase Notes from the
Company as principal and one or more Agents shall fail at the relevant
Settlement Date to purchase the Notes which an Agent is obligated to purchase
(the "Defaulted Notes"), then the nondefaulting Agents shall have the right,
within 24 hours thereafter, to make arrangements for one Agent or one or more
other Agents to purchase all, but not less than all, of the Defaulted Notes in
such amounts as may be agreed upon and upon the terms herein set forth;
provided, however, that if such arrangements shall not have been completed
within such 24-hour period, then:
(A) if the aggregate principal amount of Defaulted
Notes does not exceed 10% of the aggregate principal amount of
Notes to be so purchased by all of such Agents on such
Settlement Date, the nondefaulting Agents shall be obligated,
severally and not jointly, to purchase the full amount thereof
in the proportions that their respective initial purchase
obligations bear to the purchase obligations of all
nondefaulting Agents; or
(B) if the aggregate principal amount of Defaulted
Notes exceeds 10% of the aggregate principal amount of Notes
to be so purchased by all of such Agents on such Settlement
Date, such agreement shall terminate without liability on the
part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting
Agent from liability in respect of its default. In the event of any such default
which does not result in a termination of such agreement, either the
nondefaulting Agents or the Company shall have the right to postpone the
relevant Settlement Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
11. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and each Agent set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Notes as
principal will remain in full force and effect, regardless of any termination of
this Agreement or any such agreement, any investigation made by or on behalf of
an Agent or the Company or any of the officers, directors or controlling persons
referred to in Sections 7 and 8 and delivery of and payment for the Notes.
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28
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to each Agent, will be mailed, delivered
or telefaxed and confirmed to each Agent at:
Banc One Capital Markets, Inc.
1 Bank One Plaza, Suite IL1-0595
Chicago, Illinois 60670
Attention: Corporate Securities Structuring
Telephone: 312-732-8270
Telecopy: 312-732-4773
Banc of America Securities LLC
100 North Tyron Street
Mail Code NC1-007-07-01
Charlotte, North Carolina 28255
Attention: Product Management/Medium Term Notes
Telephone: 704-386-7800
Telecopy: 704-388-9939
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017-2070
Attention: Medium-Term Note Desk
Telephone: 212-834-4421
Telecopy: 212-834-6081
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium Term Finance
Telephone: 212-325-7198
Telecopy: 212-325-8183
Morgan Stanley & Co., Incorporated
1585 Broadway
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telephone: 212-761-2000
Telecopy: 212-761-0780
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29
with a copy to:
Morgan Stanley & Co., Incorporated
1585 Broadway
29th Floor
New York, N.Y. 10036
Attention: Peter Cooper, Investment Banking Information Center
Telephone: 212-761-8385
Telecopy: 212-761-0164
Warburg Dillon Read LLC
677 Washington Blvd.
Stamford, CT 06901
Attention: Debt Syndicate
Telephone: 203-719-1342
Telecopy: 203-719-7139
or, if sent to the Company, will be mailed, delivered or telefaxed and
confirmed to it at:
Centex Corporation,
2728 North Harwood Street,
Dallas, Texas 75201,
Attention: Vicki Roberts
Telephone: 214-981-6533
Telecopy: 214-981-6858
13. Successors. This Agreement and any Terms Agreement will inure to
the benefit of and be binding upon each of the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any Terms Agreement or any provision herein or therein contained. This
Agreement and any applicable Terms Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
14. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
15. Applicable Law. This Agreement and all the rights and obligations
of the parties shall be governed by and construed in accordance with the laws of
the State of New York applicable to agreements made and to be performed in such
State.
16. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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If the foregoing is in accordance with your respective understandings
of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this instrument and your respective acceptances shall represent a
binding agreement between the Company and each Agent.
Very truly yours,
CENTEX CORPORATION
By: /s/ Vicki A. Roberts
----------------------------------
Title: Vice President and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BANC ONE CAPITAL MARKETS, INC.
By /s/ Katherine Cokic
----------------------------------
Title: Vice-President
BANC OF AMERICA SECURITIES LLC
By /s/ Gennell Jefferson
----------------------------------
Title: Principal
CHASE SECURITIES INC.
By /s/ Huw Richards
----------------------------------
Title: Vice-President
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Helena M. Willner
----------------------------------
Title: Director
MORGAN STANLEY & CO., INCORPORATED
By /s/ Harold J. Hendershot III
-----------------------------------
Title:
WARBURG DILLON READ LLC
By /s/ Tom Hartfield
----------------------------------
Title:
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31
EXHIBIT A
CENTEX CORPORATION
SENIOR MEDIUM-TERM NOTES, SERIES C
TERMS AGREEMENT
, 2000
---------------
Centex Corporation
2728 North Harwood Street
Dallas, Texas 75201
Attention:
Re: Distribution Agreement dated January __, 2000
(the "Distribution Agreement")
Subject to the terms and conditions set forth or incorporated
by reference herein, the undersigned agrees to purchase $ (or principal
------
amount of foreign currency or composite currency) aggregate principal amount
of your Senior Medium-Term Notes having the following terms:
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
|_| LIBOR Reuters
|_| LIBOR Telerate
Index Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
32
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Settlement Date and Time:
Additional/Other Terms:
The certificates, opinions and letters referred to in Sections
6(a), (b) and (c) of the Distribution Agreement [will/will not] be required.
All provisions contained in the Distribution Agreement, dated
January __, 2000, between Centex Corporation and _________________________ are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full here in.
[Name of Agent]
By
--------------------------------
Name:
Title:
Accepted:
CENTEX CORPORATION
By
-------------------
Name:
Title:
2
33
EXHIBIT B
CENTEX CORPORATION
SUBORDINATED MEDIUM-TERM NOTES, SERIES C
TERMS AGREEMENT
, 20__
---------
Centex Corporation
2728 North Harwood Street
Dallas, Texas 75201
Attention:
Re: Distribution Agreement dated January __, 2000
(the "Distribution Agreement")
Subject to the terms and conditions set forth or incorporated
by reference herein, the undersigned agrees to purchase $ (or principal
--------
amount of foreign currency or composite currency) aggregate principal amount
of your Subordinated Medium-Term Notes having the following terms:
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
|_| LIBOR Reuters
|_| LIBOR Telerate
Index Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
34
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Settlement Date and Time:
Additional/Other Terms:
The certificates, opinions and letters referred to in Sections
6(a), (b) and (c) of the Distribution Agreement [will/will not] be required.
All provisions contained in the Distribution Agreement, dated
January __, 2000, between Centex Corporation and _________________________ are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full here in.
[Name of Agent]
By
-------------------------------
Name:
Title:
Accepted:
CENTEX CORPORATION
By
----------------
Name:
Title:
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EXHIBIT C
CENTEX CORPORATION
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE, FLOATING RATE AND REMARKETED
MEDIUM TERM NOTES, SERIES C
(DATED AS OF JANUARY 27, 2000)
Fixed Rate Medium Term Notes (the "Fixed Rate Notes"), Floating Rate
Medium Term Notes (the "Floating Rate Notes") and Remarketed Medium Term Notes
(the "Remarketed Notes"), all Due Nine Months or More From Date of Issue
(collectively, the "Notes"), are to be offered from time to time by Centex
Corporation, a Nevada corporation (the "Company"), to or through Banc One
Capital Markets, Inc., Banc of America Securities LLC, Chase Securities Inc.,
Credit Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated and
Warburg Dillon Read LLC (individually, an "Agent" and collectively, the
"Agents"), pursuant to a Distribution Agreement dated January 27, 2000 (the
"Distribution Agreement") between the Company and the Agents. The Distribution
Agreement provides both for the sale of Notes by the Company to one or more of
the Agents as principal for resale to investors and other purchasers and for the
sale of Notes by the Company directly to investors (as may from time to time be
agreed to by the Company and the related Agent or Agents) in which case the
Agents will act as agents of the Company in soliciting Note purchases. Each sale
of Notes will be made in accordance with terms agreed upon by the related Agent
or Agents and the Company in a Terms Agreement in the form included in Exhibit A
to the Distribution Agreement. Only those provisions in these Administrative
Procedures that are applicable to the particular role that an Agent will perform
shall apply to the offer and sale of the relevant Notes.
The Notes will be issued as one or more series of debt securities and
will be either Senior Debt Securities ("Senior Notes") or Subordinated Debt
Securities ("Subordinated Notes"). The Senior Notes will be issued under an
Indenture, dated as of October 1, 1998, as supplemented by an Indenture
Supplement No. 3 thereto dated as of January 27, 2000 (the "Senior Indenture"),
and the Subordinated Notes will be issued under an Indenture dated as of March
12, 1987, as supplemented by an Indenture Supplement No. 6 thereto dated as of
January 27, 2000 (the "Subordinated Indenture" and, together with the Senior
Indenture, the "Indentures"), as each may be amended, supplemented or modified
from time to time, between the Company and Chase Bank of Texas, National
Association, as trustee with respect to the Notes (formerly, Texas Commerce Bank
National Association) (together with any successor in such capacity, the
"Trustee"). In accordance with the provisions of the Indentures, the Trustee
will act as Authenticating Agent, Transfer Agent and Paying Agent with respect
to the Notes. Unless the context otherwise requires, references herein to the
Indentures include the form of Note adopted in accordance with the terms of the
Indentures.
A Registration Statement on Form S-3 (No. 333-94221) (the "Registration
Statement"), with respect to debt securities, including the Notes, has been
filed under the Securities Act of 1933, as amended (the "1933 Act"), with the
Securities and Exchange Commission (the "Commission") and
36
declared effective on January 24, 2000. The most recent base Prospectus included
in the Registration Statement, as supplemented by the Prospectus Supplement
dated January 27, 2000 with respect to the Notes, is herein referred to as the
"Prospectus". The most recent supplement to the Prospectus setting forth the
purchase price, interest rate and other terms of the Notes (as applicable) is
herein referred to as the "Pricing Supplement."
The Notes will either be issued in (a) fully registered book-entry form
and represented by one or more fully registered Notes without coupons (each, a
"Global Note") delivered to the Trustee, as custodian for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC, or (b)
in certificated form (each, a "Certificated Note") delivered to the investor or
other purchaser thereof or a person designated by such investor or other
purchaser. Owners of beneficial interests in Notes issued in book-entry form
will be entitled to physical delivery of Notes in certificated form equal in
principal amount to their respective beneficial interests only upon certain
limited circumstances described in the Prospectus.
As set forth in the Prospectus, the Company shall appoint one or more
remarketing agents (each, a "Remarketing Agent" and, collectively, the
"Remarketing Agents") with respect to the Remarketed Notes pursuant to a
remarketing agreement (the "Remarketing Agreement").
General procedures relating to the initial issuance of Notes are set
forth in Part I hereof. Certain procedures relating to the initial issuance of
Notes issued in book-entry form and for remarketing of Remarketed Notes are set
forth in Part II hereof. Procedures for Certificated Notes are set forth in Part
III hereof. Certain additional procedures relating to the remarketing of
Remarketed Notes are set forth in Part IV hereof. Procedures relating to the
payment of principal and interest are set forth in Part V hereof.
In the event of any discrepancy between these Administrative Procedures
and the Distribution Agreement, the Remarketing Agreement, the Letters of
Representations or the Indentures, the latter documents shall govern.
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PART I: PROCEDURES FOR INITIAL ISSUANCE OF NOTES
Date of Issuance/ Each Note will be dated as of the date of its
Authentication: authentication by the Trustee. Each Note shall
also bear an original issue date (each, an
"Original Issue Date"). The Original Issue Date
shall remain the same for all Notes
subsequently issued upon transfer, exchange or
substitution of an original Note regardless of
their dates of authentication.
Maturities: Each Note will mature on a date nine months or
more from its Original Issue Date (the "Stated
Maturity Date") selected by the investor or
other purchaser and agreed to by the Company.
Registration: Each Note will be issued as a Book-Entry Note
represented by one or more fully registered
Global Securities or as a fully registered
Certificated Note; except that Remarketed Notes
will be issued only as Book-Entry Notes.
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, the Notes will be issued in
denominations of $1,000 and integral multiples
thereof; except that Remarketed Notes will be
issued in minimum denominations of $100,000 and
integral multiples of $1,000 in excess thereof.
Preparation of Pricing If any offer to purchase a Note is accepted by
Supplement: the Company, the Company will promptly prepare
a Pricing Supplement reflecting the terms of
such Note and file such Pricing Supplement with
the Commission in accordance with Rule 424
under the 1933 Act. Information to be included
in the Pricing Supplement shall include:
1. the name of the Company;
2. the title of the Notes;
3. the date of the Pricing Supplement and the
dates of the Prospectus and Prospectus
Supplement to which the Pricing Supplement
relates;
4. the name of the Offering Agent (as
hereinafter defined);
5. with respect to Notes sold to the Agent as
principal, whether such Notes will be
resold by the Offering Agent to investors
and other purchasers (i) at a fixed
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public offering price of a specified
percentage of their principal amount, (ii)
at varying prices related to prevailing
market prices at the time of resale to be
determined by the Offering Agent or (iii)
at 100% of their principal amount;
6. with respect to Notes sold to an investor
or other purchaser through the Offering
Agent acting as agent for the Company,
whether such Notes will be sold at (i) 100%
of their principal amount or (ii) at a
specified percentage of their principal
amount;
7. the Offering Agent's commission or
underwriting discount;
8. net proceeds to the Company;
9. any other provisions of the Notes material
to investors or other purchasers of the
Notes not otherwise specified in the
Prospectus.
One copy of such filed Pricing Supplement will
be sent by telecopy or overnight express (for
delivery as soon as practicable following the
trade, but in no event later than 11:00 a.m.
New York City time, on the Business Day
following the applicable trade date) to the
Trustee at 600 Travis Street, Suite 1150,
Houston, Texas 77002, Attention: Gary Jones,
telecopier: (713) 216-1812, and to the Agent
that made or presented the offer to purchase
the applicable Note (in such capacity, the
"Offering Agent") at the following applicable
address: if to Banc One Capital Markets, Inc.,
to: 1 Bank One Plaza, Suite IL1-0595, Chicago,
Illinois 60670, Attention: Evonne Taylor,
telecopier: (312) 732-4773; if to Banc of
America Securities LLC, to: Capital Market
Services, 100 North Tyron Street,
NC1-007-07-01, Charlotte, North Carolina 28255,
Attention: Jennifer Arens, telecopier: (704)
388-9939; if to Chase Securities Inc., to: 270
Park Avenue, 8th Floor, New York, New York
10017-2070, Attention: Medium-Term Note Desk,
telecopier (212)834-6081; if to Credit Suisse
First Boston Corporation, to: 11 Madison
Avenue, New York, New York 10010, Attention:
Helena Willner, telecopier: (212) 325-8183; if
to Morgan Stanley & Co. Incorporated, to: 1585
Broadway, 2nd Floor, New York, New York 10036,
Attention: Medium Term Note Trading Desk,
telecopier: (212) 761-8483; if to Warburg
Dillon Read LLC, to: 535 Madison Avenue, New
York, New York
4
39
10022, Attention: Joseph Moore, telecopier:
(203) 719-0495. For record keeping purposes,
one copy of each Pricing Supplement, as so
filed, shall also be mailed or telecopied to
Milbank, Tweed, Hadley & McCloy, 1 Chase
Manhattan Plaza, New York, New York 10005-1413,
Attention: Robert Williams, Esq.
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a
copy of such Pricing Supplement to each
investor or purchaser of the relevant Notes or
its agent. Pursuant to Rule 434 ("Rule 434")
under the 1933 Act, the Pricing Supplement may
be delivered separately from the Prospectus.
Outdated Pricing Supplements (other than those
retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by
the Company in payment for a Note and the
authentication and delivery of such Note shall,
with respect to such Note, constitute
"settlement." Offers accepted by the Company
will be settled in three Business Days, or at a
time as the purchaser, the applicable Agent and
the Company shall agree, pursuant to the
timetable for settlement set forth below in
Part II and in Part III hereof under
"Settlement Procedures" with respect to Global
Notes and Certificated Notes, respectively
(each such date fixed for settlement is
hereinafter referred to as a "Settlement
Date"). If procedures A and B of the applicable
Settlement Procedures with respect to a
particular offer are not completed on or before
the time set forth under the "Settlement
Procedures Timetable," such offer shall not be
settled until the Business Day next following
the completion of settlement procedures A and B
or such later date as the purchaser, the
applicable Agent and the Company shall agree.
The foregoing settlement procedures may be
modified, with respect to any purchase of Notes
by an Agent as principal, if so agreed by the
Company and such Agent.
Remarketing Settlement Procedures are set forth
in Part IV hereof under Settlement Procedures
for Remarketing.
Delivery of Prospectus and A copy of the most recent Prospectus covering
Applicable Pricing the Notes and applicable Pricing Supplement,
Supplement: which pursuant to Rule 434 may be delivered
separately from the Prospectus, must accompany
or precede the earlier of (a) the written
confirmation of a sale sent to an investor or
other purchaser or
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40
its agent and (b) the delivery of Notes to an
investor or other purchaser or its agent.
Delivery of the Prospectus and Pricing
Supplement shall be the responsibility of the
Offering Agent.
Acceptance and Rejection of If agreed upon by the Offering Agent and the
Offers from Solicitation as Company, then the Offering Agent acting solely
Offering Agents: as agent for the Company and not as principal
will solicit purchases of the Notes. The
Offering Agent will communicate to the Company,
orally or in writing, each reasonable offer to
purchase Notes solicited by the Offering Agent
on an agency basis, other than those offers
rejected by the Offering Agent. The Offering
Agent has the right, in its discretion
reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and
any such rejection shall not be a breach of the
Offering Agent's agreement contained in the
Distribution Agreement. The Company has the
sole right to accept or reject any proposed
purchase of Notes, in whole or in part, and any
such rejection shall not be a breach of the
Company's agreement contained in the
Distribution Agreement. The Offering Agent has
agreed to make reasonable efforts to assist the
Company in obtaining performance by each
purchaser whose offer to purchase Notes has
been solicited by the Offering Agent and
accepted by the Company.
Authenticity of Signatures: The Offering Agent will have no obligation or
liability to the Company or the Trustee in
respect of the authenticity of the signature of
any officer, employee or agent of the Company
or the Trustee on any Note.
Documents Incorporated by The Company shall supply the Offering Agent
Reference: with an adequate supply of all documents
incorporated by reference in the Registration
Statement and the Prospectus.
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PART II: DTC PROCEDURES FOR INITIAL ISSUANCE OF
NOTES ISSUED IN BOOK-ENTRY FORM AND
FOR REMARKETING OF REMARKETED NOTES
In connection with the qualification of Notes issued initially in
book-entry form (each, a "Global Note") for eligibility in the book-entry system
maintained by DTC, the Trustee will perform the custodial, document control and
administrative functions described below, in accordance with its respective
obligations under a Bring-Down Letter of Representation, dated January 27, 2000,
relating to the issuance of Senior Notes and Subordinated Notes, both from the
Company and the Trustee to DTC (collectively, the "Letters of Representations"),
and a Certificate Agreement, dated December 2, 1998, between the Trustee and
DTC, as amended (the "Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Rate, Default Rate, Interest
Payment Dates, redemption and/or repayment
terms, if any, and Stated Maturity Date
(collectively, the "Fixed Rate Terms") will be
represented initially by a single Global Note.
All Floating Rate Notes issued in book-entry
form having the same Original Issue Date,
Interest Category, formula for the calculation
of interest (including the Interest Rate Basis
or Bases, which may be the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Eleventh
District Cost of Funds Rate, the Federal Funds
Rate, LIBOR, the Prime Rate or the Treasury
Rate or any other interest rate basis or
formula, and Spread and/or Spread Multiplier,
if any), Day Count Convention, Initial Interest
Rate, Default Rate, Index Maturity (if
applicable), Minimum Interest Rate, if any,
Maximum Interest Rate, if any, redemption
and/or repayment terms, if any, Interest
Payment Dates, Initial Interest Reset Date,
Interest Reset Dates and Stated Maturity Date
(collectively, the "Floating Rate Terms") will
be represented initially by a single Global
Note.
For other variable terms with respect to the
Fixed Rate Notes and Floating Rate Notes, see
the Prospectus and the applicable Pricing
Supplement.
All Remarketed Notes issued having the same
Agent, Original Issue Date, Initial Interest
Rate, Initial Interest Rate Period and Stated
Maturity Date and other terms will be
represented initially by a single Global Note
in fully registered form without coupons. All
such initial terms will be recorded by the
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Trustee on Annex A to such Global Note. The
terms of remarketing from time to time will be
evidenced by the records maintained by the
Trustee.
All Remarketed Notes subsequently remarketed on
the same Interest Adjustment Date in the same
Interest Rate Mode having the same Interest
Rate, Interest Rate Period and other terms will
be represented by a single Global Note.
Each Global Note will be dated and issued as of
the date of its authentication by the Trustee.
The date from which interest will begin to
accrue with respect to each Note will be (a)
with respect to an original Note (or any
portion thereof), its Original Issue Date and
(b) with respect to any Note (or portion
thereof) issued subsequently upon exchange of a
Note or in lieu of a destroyed, lost or stolen
Note, the most recent Interest Payment Date to
which interest has been paid or duly provided
for on the predecessor Note or Notes (or if no
such payment or provision has been made, the
Original Issue Date of the predecessor Note or
Notes), regardless of the date of
authentication of such subsequently issued
Note. No Global Note shall represent any Note
issued in certificated form.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Ratings Services
(the "CUSIP Service Bureau") for the
reservation of two series of CUSIP numbers,
each series consisting of approximately 900
CUSIP numbers which have been reserved for and
relate to the Senior Fixed Rate and Senior
Floating Rate Global Notes in the first
instance, to the Remarketed Global Notes in the
second instance, and to the Subordinated Fixed
Rate and Subordinated Floating Rate Global
Notes in the third instance. The Company has
delivered to each of the Trustee and DTC such
list of such CUSIP numbers.
The Trustee will assign CUSIP numbers to the
Global Notes upon initial issuance and upon
remarketing in the case of Remarketed Notes as
described above and then advise the Company by
telephone and facsimile transmission or other
electronic transmission of such CUSIP number,
after receiving from the Company the
information specified in Part I above or, as
the case may be, Part IV below.
DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the
Trustee has assigned to the Global Notes. The
Trustee will notify the Company at any time
when
8
43
fewer than 100 of the reserved CUSIP numbers
remain unassigned to the Global Notes, and, if
it deems necessary, the Company will reserve
and obtain additional CUSIP numbers for
assignment to the Global Notes. Upon obtaining
such additional CUSIP numbers, the Company will
deliver a list of such additional numbers to
the Trustee and DTC.
Registration: Unless otherwise specified by DTC, each Global
Note will be registered in the name of Cede &
Co., as nominee for DTC, on the register
maintained by the Trustee under the Indentures.
The beneficial owner of a Global Note (or one
or more indirect participants in DTC designated
by such owner) will designate one or more
participants in DTC (with respect to such Note,
the "DTC participants") to act as agent for
such beneficial owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance
with instructions provided by such DTC
participants, a credit balance with respect to
such Global Note in the account of such DTC
participants. The ownership interest of such
beneficial owner in such Global Note will be
recorded through the records of such DTC
participants or through the separate records of
such DTC participants and one or more indirect
participants in DTC.
Transfers: Transfers of beneficial ownership interests in
a Global Note will be accomplished by book
entries made by DTC and, in turn, by DTC
participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf
of beneficial transferors and transferees of
such Global Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or more
Global Notes outstanding on such date that
represent Global Notes having the same Fixed
Rate Terms, Floating Rate Terms or Remarketed
Terms, as the case may be (other than Original
Issue Dates), and for which interest has been
paid to the same date; (b) a date, occurring at
least 30 days after such written notice is
delivered and at least 30 days before the next
Interest Payment Date for the related Notes
issued in book-entry form, on which such Global
Notes shall be exchanged for a single
replacement Global Note; and (c) a new CUSIP
number, obtained from the Company, to be
assigned to such replacement Global Note. Upon
receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written
reorganization notice to the effect that such
exchange will occur on such
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44
date. Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service
Bureau written notice setting forth such
exchange date and the new CUSIP number and
stating that, as of such exchange date, the
CUSIP numbers of the Global Notes to be
exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Global Notes for a single Global
Note bearing the new CUSIP number and the CUSIP
numbers of the exchanged Notes will, in
accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. Notwithstanding the foregoing, if
the Global Notes to be exchanged exceed
$200,000,000 (or the equivalent thereof in one
or more foreign or composite currencies) in
aggregate principal amount, one replacement
Note will be authenticated and issued to
represent each $200,000,000 (or the equivalent
thereof in one or more foreign or composite
currencies) in aggregate principal amount of
the exchanged Global Notes and an additional
Global Note or Notes will be authenticated and
issued to represent any remaining principal
amount of such Global Notes. (See
"Denominations" below).
Denominations: Global Notes will not be denominated in excess
of $200,000,000 aggregate principal amount. If
one or more Notes are issued in book-entry form
in excess of $200,000,000 aggregate principal
amount and would, but for the preceding
sentence, be represented by a single Global
Note, then one Global Note will be issued to
represent each $200,000,000 in aggregate
principal amount of such Notes issued in
book-entry form and an additional Global Note
or Notes will be issued to represent any
remaining aggregate principal amount of such
Note or Notes issued in book-entry form. In
such a case each of the Global Notes
representing Notes issued in book-entry form
shall be assigned the same CUSIP number.
Settlement Settlement Procedures with regard to each Note
Procedures: in book-entry form purchased by an Agent, as
principal, or sold by an Agent, as agent of the
Company, will be as follows:
A. The Offering Agent will advise the Company
by telephone, confirmed by facsimile or
appropriate electronic media, of the
following Settlement information:
1. Principal amount of the Note.
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2. (a) For Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the
terms thereof.
(b) For Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or
Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset Date
or Interest Reset Date.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
(c) For Remarketed Notes:
(i) Initial Interest Rate.
(ii) Initial Interest Rate
Period.
(iii) First Interest Rate
Adjustment Date.
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46
(iv) Interest Payment Date(s) and
Record Dates in respect of
the Initial Interest Rate
Period.
(v) Redemption or Repayment
provisions, if any,
applicable to the Initial
Interest Rate Period and the
name of the Remarketing
Agent, if any.
3. Price to public, if any, of such Note
(or whether such Note is being offered
at varying prices relating to
prevailing market prices at time of
resale as determined by the Offering
Agent).
4. Trade Date.
5. Settlement Date (Original Issue Date).
6. Stated Maturity Date.
7. Net proceeds to the Company.
8. The Offering Agent's commission or
underwriting discount.
9. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
10. Identification number of DTC
participant account maintained on
behalf of the Offering Agent.
11. Redemption provisions, if any.
12. Repayment provisions, if any.
13. Default Rate, if any.
14. Such other information specified with
respect to such Note.
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B. The Trustee will assign a CUSIP number to
the Global Note representing such Note
(which CUSIP number assigned to each Note
shall consist of the base issuer number and
three additional positions to form a CUSIP
number unique to that issuance) after being
advised by the Company by facsimile
transmission or other electronic
transmission of the above settlement
information received from the Offering
Agent and the name of the Offering Agent.
C. The Trustee will communicate to DTC and the
Offering Agent through DTC's Participant
Terminal System same-day settlement
issuance instructions specifying the
following settlement information:
1. The information set forth in Settlement
Procedure A.
2. Identification numbers of the
participant accounts maintained by DTC
on behalf of the Trustee and the
Offering Agent.
3. Identification of the Note as a Fixed
Rate Note, Floating Rate Note or a
Remarketed Note.
4. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related record date for
DTC purposes and, if then calculable,
the amount of interest payable on such
Interest Payment Date.
5. CUSIP number of the Note.
6. Such other information as DTC may
require in accordance with its
procedures as in effect from time to
time in order to enter an SDFS deliver
order through DTC's Participant
Terminal System (i) debiting such Note
to the Trustee's participant account
and crediting such Note to the
participant account of the Offering
Agent maintained by DTC and (ii)
debiting the settlement account of the
Offering Agent and crediting the
settlement account of the Trustee
maintained by DTC, in an amount equal
to the price of such Note less the
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48
Offering Agent's discount or
underwriting commission, as applicable.
DTC will arrange for each pending
deposit message described above to be
transmitted to the CUSIP Service Bureau
(in the case of any Remarketed Note,
provided that the Initial Interest Rate
Period is more than 270 days).
D. The Trustee will complete Annex A to
the Global Note and authenticate the
book-entry note representing the Note.
E. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
F. The Trustee will enter the SDFS deliver
order to (i) debit the Note to the
Trustee's participant account and
credit such Note to the participant
account of the Offering Agent and (ii)
debit the settlement account of the
Offering Agent and credit the
settlement account of the Trustee. Any
entry of such a deliver order shall be
deemed to constitute a representation
and warranty by the Trustee to DTC that
(i) the Global Note representing such
Note has been issued and authenticated
and (ii) the Trustee is holding such
Global Note pursuant to the Certificate
Agreement.
G. In the case of Notes sold through the
Offering Agent, as agent, the Offering
Agent will enter an SDFS deliver order
through DTC's Participant Terminal
System instructing DTC (i) to debit
such Note to the Offering Agent's
participant account and credit such
Note to the participant account of the
DTC participants maintained by DTC,
(ii) to debit the settlement accounts
of such DTC participants and credit the
settlement account of the Offering
Agent maintained by DTC in an amount
equal to the initial public offering
price of such Note. In any case, the
Offering Agent, acting as agent or as
principal, will enter an SDFS deliver
order instructing DTC to debit the
settlement account of the Offering
Agent and credit the settlement account
of the Trustee in such amount less the
Offering Agent's discount or
commission.
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H. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures F and G will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
I. Upon receipt, the Trustee will pay the
Company, by wire transfer of
immediately available funds to an
account specified by the Company to the
Trustee from time to time, in the
amount transferred to the Trustee in
accordance with Settlement Procedure F.
J. The Trustee will send a copy of the
book-entry note representing the Note
by first class mail to the Company
together with a statement setting forth
the principal amount of Notes
Outstanding as of the related
Settlement Date after giving effect to
such transaction and all other offers
to purchase Notes of which the Company
has advised the Trustee but which have
not yet been settled.
K. If the Note was sold through the
Offering Agent, as agent, the Offering
Agent will confirm the purchase of such
Note to the investor or other purchaser
either by transmitting to the DTC
participant with respect to such Note a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement Procedures For offers to purchase Notes accepted by the
Timetable: Company, Settlement Procedures "A" through "K"
set forth above shall be completed as soon as
possible but not later than the respective
times (New York City time) set forth below:
SETTLEMENT
PROCEDURE TIME
A. 11:00 a.m. on the trade date or
within one hour following the trade
B. 12:00 noon on the trade date or
within one hour following the trade
C. No later than the close of business
on the Business Day prior to the
trade date, in the case of pending
instructions, and otherwise
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between 8:00 a.m. and 1:30 p.m. on
the Settlement Date
D. 9:00 a.m. on Settlement Date
E. 3:00 p.m. on Settlement Date
F. 3:00 p.m. on Settlement Date
G. 3:00 p.m. on Settlement Date
H. 4:00 p.m. on Settlement Date
I.-K. 5:00 p.m. on Settlement Date
Settlement Procedure H is subject to extension
in accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the Settlement Date.
If settlement of a Note is rescheduled or
canceled, the Trustee will deliver to DTC,
through DTC's Participant Terminal System, a
cancellation message to such effect by no later
than 5:00 p.m., New York City time, on the
Business Day immediately preceding the
scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver
order with respect to a Note pursuant to
Settlement Procedure F, the Trustee may deliver
to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal
message instructing DTC to debit such Note to
the participant account of the Trustee
maintained at DTC. DTC will process the
withdrawal message, provided that such
participant account contains a principal amount
of the Notes that is at least equal to the
principal amount to be debited. If withdrawal
messages are processed with respect to all the
Notes evidenced by a Global Note, the Trustee
will mark such Global Note "canceled", make
appropriate entries in its records and send
certificate of destruction of such canceled
Global Note to the Company. The CUSIP number
assigned to such Global Note shall, in
accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If withdrawal messages are
processed with respect to a portion of the
Notes represented by a single Global Note, the
Trustee will exchange such Global Note for two
Notes, one of which shall represent the Notes
for which withdrawal messages are processed and
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shall be canceled immediately after issuance,
and the other of which shall represent the
other Notes previously represented by the
surrendered Global Note and shall bear the
CUSIP number of the surrendered Global Note.
In the case of any Note sold through the
Offering Agent, as agent, if the purchase price
for any Note is not timely paid to the DTC
participants with respect to such Note by the
beneficial investor or other purchaser thereof
(or a person, including an indirect participant
in DTC, acting on behalf of such investor or
other purchaser), such DTC participants and, in
turn, the related Offering Agent may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures F and G,
respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph. If such failure shall have occurred
for any reason other than default by the
applicable Offering Agent to perform its
obligations hereunder or under the Distribution
Agreement, the Company will reimburse such
Offering Agent on an equitable basis for its
reasonable loss of the use of funds during the
period when the funds were credited to the
account of the Company.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Note, DTC may take
any actions in accordance with its SDFS
operating procedures then in effect. In the
event of a failure to settle with respect to a
Note that was to have been represented by a
Global Note also representing other Notes, the
Trustee will provide, in accordance with
Settlement Procedure D, for the authentication
and issuance of a Global Note representing such
remaining Notes and will make appropriate
entries in its records.
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PART III: PROCEDURES FOR CERTIFICATED NOTES
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased by the Offering
Agent, as principal, or through the Offering
Agent, as agent, shall be as follows:
A. The Offering Agent will advise the Company
by telephone of the following Settlement
information with regard to each
Certificated Note:
1. Exact name in which the Certificated
Note(s) is to be registered (the
"Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery, notices
and payments of principal, premium, if
any, and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount.
5. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the
terms thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or
Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset Date
and Interest Reset Dates.
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(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
6. Price to public of such Certificated
Note (or whether such Note is being
offered at varying prices relating to
prevailing market prices at time of
resale as determined by the Offering
Agent).
7. Trade Date.
8. Settlement Date (Original Issue Date).
9. Stated Maturity Date.
10. Redemption provisions, if any.
11. Repayment provisions, if any.
12. Default Rate, if any.
13. Net proceeds to the Company.
14. The Offering Agent's discount or
commission.
15. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
16. Such other information specified with
respect to such Note (whether by
Addendum or otherwise).
B. After receiving such settlement information
from the Offering Agent, the Company will
advise the Trustee of the above settlement
information by facsimile transmission
confirmed by telephone. The Company will
cause the Trustee to issue, authenticate
and deliver the Certificated Note.
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C. The Trustee will complete the Certificated
Note in the form approved by the Company
and the Offering Agent, and will make three
copies thereof (herein called "Stub 1",
"Stub 2" and "Stub 3"):
1. Certificated Note with the Offering
Agent's confirmation, if traded on a
principal basis, or the Offering
Agent's customer confirmation, if
traded on an agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the Trustee
will deliver the Certificated Note and Stub
2 thereof to the Offering Agent at the
following applicable address: if to Banc
One Capital Markets, Inc., to: 1 Bank One
Plaza, Suite IL1-0595, Chicago, Illinois
60670, Attention: Evonne Taylor,
telecopier: (312) 732-4773; if to Banc of
America Securities LLC, to: Capital Market
Services, 100 North Tyron Street,
NC1-007-07-01, Charlotte, North Carolina
28255, Attention: Jennifer Arens,
telecopier: (704) 388-9939; if to Chase
Securities Inc., to: 55 Walker Street, Room
226, New York, New York 10041, Attention:
Window 17 or 18, telecopier (212) 638-5618;
if to Credit Suisse First Boston
Corporation, to: 11 Madison Avenue, New
York, New York 10010, Attention: Helena
Willner, telecopier: (212) 325-8183; if to
Morgan Stanley & Co. Incorporated, to: Bank
of New York, Dealer Clearance Department, 1
Wall Street, 3rd Floor, Window 3B, New
York, New York 10005, Attention: For the
account of Morgan Stanley & Co.
Incorporated; if to Warburg Dillon Read
LLC, to: 535 Madison Avenue, New York, New
York 10022, Attention: Joseph Moore,
telecopier: (203) 719-0495, and the Trustee
will keep Stub 1. The Offering Agent will
acknowledge receipt of the Certificated
Note through a broker's receipt and will
keep Stub 2. Delivery of the Certificated
Note will be made only against such
acknowledgment of receipt. Upon
determination that the Certificated Note
has been authorized, delivered and
completed as aforementioned, the Offering
Agent will wire the net proceeds of the
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Certificated Note after deduction of its
applicable commission to the Company
pursuant to standard wire instructions
given by the Company.
E. In the case of a Certificated Note sold
through the Offering Agent, as agent, the
Offering Agent will deliver such
Certificated Note (with the confirmation)
to the purchaser against payment in
immediately available funds.
F. The Trustee will send Stub 3 to the
Company.
Settlement Procedures For offers to purchase Certificated Notes
Timetable: accepted by the Company, Settlement Procedures
A through F set forth above shall be completed
as soon as possible following the trade but not
later than the respective times (New York City
time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on the trade date or
within one hour following the trade
B 12:00 noon on the trade date or within
one hour following the trade
C 2:15 p.m. on Settlement Date
D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold through
the Offering Agent, as agent, if an investor or
other purchaser of a Certificated Note from the
Company shall either fail to accept delivery of
or make payment for such Certificated Note on
the date fixed for settlement, the Offering
Agent will forthwith notify the Trustee and the
Company by telephone, confirmed in writing, and
return such Certificated Note to the Trustee.
The Trustee, upon receipt of such Certificated
Note from the Offering Agent, will immediately
advise the Company and the Company will
promptly arrange to credit the account of the
Offering Agent in an amount of immediately
available funds
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equal to the amount previously paid to the
Company by such Offering Agent in settlement
for such Certificated Note. Such credits will
be made on the Settlement Date if possible, and
in any event not later than the Business Day
following the Settlement Date; provided that
the Company has received notice on the same
day. If such failure shall have occurred for
any reason other than failure by such Offering
Agent to perform its obligations hereunder or
under the Distribution Agreement, the Company
will reimburse such Offering Agent on an
equitable basis for its reasonable loss of the
use of funds during the period when the funds
were credited to the account of the Company.
Immediately upon receipt of the Certificated
Note in respect of which the failure occurred,
the Trustee will cancel and destroy such
Certificated Note, make appropriate entries in
its records to reflect the fact that such
Certificated Note was never issued, and
accordingly notify in writing the Company.
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PART IV: PROCEDURES FOR REMARKETING OF REMARKETED NOTES
Conversions: As long as the Remarketed Notes are in the
Short Term Rate Mode or the Long Term Rate
Mode, the Company may change the Interest Rate
Mode or Interest Rate Period at its option in
the manner described in the Remarketed Notes.
Any Conversion Notice or Floating Interest Rate
Notice must be received by the Trustee and the
Remarketing Agent from the Company in the
manner and within the time period prescribed in
the Remarketed Notes.
With respect to proposed conversions into a
Long Term Rate Period, notice of revocation or
change by the Company must be received by the
Trustee and the Remarketing Agent prior to 4:00
p.m., New York City time, on the third Business
Day preceding the Interest Rate Adjustment
Date. With respect to proposed conversions into
a Short Term Rate Period, notice of revocation
or change by the Company must be received by
the Trustee and the Remarketing Agent prior to
9:30 a.m., New York City time, on the Interest
Rate Adjustment Date.
Procedures: Remarketing The Trustee will keep a record of the
Remarketing Agent with respect to each
Remarketed Note.
Unless the context otherwise requires,
references herein to "interest rate" include
the Spread (if any) and Spread Multiplier (if
any), in the case of Remarketed Notes being
remarketed at a floating interest rate.
In connection with any Remarketed Note that is
being remarketed into a Short Term Rate Period
on the next Interest Rate Adjustment Date for
such Remarketed Note, by 12:00 p.m., New York
City time, on such Interest Rate Adjustment
Date, the applicable Remarketing Agent will
determine the interest rate for such Remarketed
Note to the nearest one thousandth (0.001) of
one percent per annum for the next Interest
Rate Period; provided that, in the event that
the Remarketing Agent is unable to remarket
such Note by 11:00 a.m., New York City time, it
shall so notify the Company and, between 11:00
a.m., New York City time, and 12:00 p.m., New
York City time, the Remarketing Agent shall use
its reasonable efforts to determine the
interest rate for any Remarketed Notes not
successfully remarketed as of 11:00 a.m., New
York City time.
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In connection with any Remarketed Note that is
being remarketed into a Long Term Rate Period
on the next Interest Rate Adjustment Date for
such Remarketed Note, by 4:00 p.m., New York
City time, on the third Business Day preceding
such Interest Rate Adjustment Date, the
Remarketing Agent will determine the interest
rate for such Remarketed Note to the nearest
one thousandth (0.001) of one percent per annum
for the next Interest Rate Period, in the case
of a fixed interest rate, and the Spread, if
any, or Spread Multiplier, if any, in the case
of a floating interest rate; provided that, if
for any reason the Remarketing Agent is unable
to determine such interest rate at such time,
the next Interest Rate Period for such
Remarketed Note shall be a Weekly Rate Period
or such other Short Term Rate Period as the
Company may determine by 9:30 a.m., New York
City time, on such Interest Rate Adjustment
Date.
By 12:30 p.m., New York City time, on the
Interest Rate Adjustment Date for any
Remarketed Note, the applicable Remarketing
Agent will notify the Company and the Trustee
in writing (which may include facsimile or
appropriate electronic media), of (i) the
interest rate or, in the case of a floating
interest rate, as applicable, the initial
interest rate and the initial Interest Reset
Date, the Spread and Spread Multiplier, and in
each case the Interest Rate Adjustment Date
applicable to such Remarketed Note and all
other Remarketed Notes for which such
Remarketing Agent is responsible for
remarketing for the next Interest Rate Period,
(ii) the Interest Payment Dates (in the case of
Notes in the Long Term Rate Mode), (iii) the
aggregate principal amount of all tendered
Notes for which such Remarketing Agent is
responsible on such date, (iv) the aggregate
principal amount of tendered Notes that such
Remarketing Agent was able to remarket, at a
price equal to 100% of the principal amount
thereof and (v) such other information as is
contemplated by Section 4(e) of the Remarketing
Agreement and also such information as the
Trustee may require for settlement purposes.
With respect to a remarketing into a Long Term
Rate Period, if by 4:00 p.m., New York City
time, on the third Business Day preceding the
Interest Rate Adjustment Date the Remarketing
Agent is unable to determine the interest rate
for any Remarketed Note subject to such
remarketing at such time, the next Interest
Rate Period for such Remarketed Note shall be a
Weekly Rate Period or such other Short Term
Rate
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Period as the Company may determine by 9:30
a.m., New York City time, on the Interest Rate
Adjustment Date.
By telephone or in writing (including facsimile
or appropriate electronic media) not later than
approximately 1:00 p.m., New York City time, on
such Interest Rate Adjustment Date, the
applicable Remarketing Agent will advise each
purchaser of Remarketed Notes remarketed on
such date (or the DTC Participant of each such
purchaser who it is expected in turn will
advise such purchaser) of the principal amount
of Remarketed Notes that such purchaser is to
purchase.
The applicable Remarketing Agent shall supply
to any Beneficial Owner upon request
information regarding the interest rate, and,
in the case of a floating interest rate, Base
Rate, Spread, if any, and Spread Multiplier, if
any, Interest Rate Period and next Interest
Rate Adjustment Date and other terms applicable
to such Beneficial Owner's Remarketed Notes.
Settlement Procedures for Remarketing Settlement Procedures for each
Remarketings: Remarketed Note will be as follows:
A. All tendered Remarketed Notes will be
automatically delivered to the account of
the Trustee by book entry through DTC
pending payment of the purchase price or
redemption price therefor, on the Interest
Rate Adjustment Date relating thereto.
B. By 12:30 p.m., New York City time, on the
Interest Rate Adjustment Date for the
Remarketed Note, the applicable Remarketing
Agent will notify the Company and the
Trustee in writing (which may include
facsimile or appropriate electronic media),
of (i) the interest rate or, in the case of
a floating interest rate, as applicable,
the initial interest rate and the initial
Interest Reset Date, the Spread and Spread
Multiplier, and in each case the Interest
Rate Adjustment Date applicable to such
Remarketed Note and all other Remarketed
Notes for which such Remarketing Agent is
responsible for remarketing for the next
Interest Rate Period, (ii) the Interest
Payment Dates (in the case of Notes in the
Long Term Rate Mode), (iii) the aggregate
principal amount of all tendered Notes for
which such Remarketing Agent is responsible
on the date, (iv) the aggregate principal
amount of tendered Remarketed Notes that
such
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Remarketing Agent was able to remarket, at
a price equal to 100% of the principal
amount thereof and (v) such other
information as is contemplated by Section
4(e) of the Remarketing Agreement and also
such information as the Trustee may require
for settlement purposes.
C. Immediately after receiving notice from the
Remarketing Agent as provided in B above,
and not later than 1:30 p.m., New York City
time, the Trustee will assign a CUSIP
number to the Remarketed Note (which CUSIP
number assigned to each Remarketed Note
shall consist of the base issuer number and
three additional positions to form a CUSIP
number unique to that remarketing) after
being notified by the Remarketing Agent as
provided in Remarketing Settlement
Procedure B above and notify the
Remarketing Agent in writing.
D. Immediately after assigning the CUSIP
number as provided in C above and not later
than 1:30 p.m., New York City time, the
Trustee will communicate to DTC and the
Remarketing Agent through DTC's Participant
Terminal System same-day settlement
issuance instructions specifying the
following settlement information:
1. The information set forth in the
Remarketing Settlement Procedure B(i)
and the principal amount of the
Remarketed Note.
2. Identification numbers of the
participant accounts maintained by DTC
on behalf of the Remarketing Agent and
the Trustee.
3. Next Interest Payment Date for such
Remarketed Note, number of days by
which such date succeeds the related
record date for DTC purposes and, if
then calculable, the amount of interest
payable on such Interest Payment Date.
4. CUSIP number of the Remarketed Note.
5. Such other information as DTC may
require in accordance with its
procedures as in effect from time to
time in order to enter SDFS deliver
orders through DTC's Participant
Terminal System (i)
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debiting such Note to the Trustee's
participant account and crediting such
Remarketed Note to the participant
account of the Remarketing Agent (for
crediting to the account of the
purchaser) maintained by DTC, (ii)
debiting the settlement account of the
Remarketing Agent's participant and
crediting the settlement account of the
Trustee and (iii) debiting the
settlement account of the Trustee and
crediting the settlement account of the
Beneficial Owner maintained by DTC, in
an amount equal to 100% of the
principal amount of such Remarketed
Note.
E. The Trustee will make the appropriate
computer entries of the Remarketed Note to
reflect the results of the remarketing of
such Remarketed Note. The Trustee will
preserve for record-keeping purposes copies
of the information provided by the
Remarketing Agent as described above or by
the Company in any Conversion Notice or
Floating Interest Rate Notice and make such
copies available to the Company and the
Remarketing Agent upon request.
F. Each purchaser of Remarketed Notes in a
remarketing must give instructions to its
DTC Participant to pay the purchase price
therefor in same day funds to the
applicable Remarketing Agent (or to the
Trustee) against delivery of the principal
amount of such Remarketed Notes by book
entry through DTC by 3:00 p.m., New York
City time, on the Interest Adjustment Date.
The Remarketing Agent will make or use its
reasonable efforts to cause to be made
payment of such amount to the Trustee by
book-entry through DTC to facilitate
settlement as described in G below.
G. The Trustee will make payment by book-entry
settlement with DTC to enable DTC to make
payment to the DTC Participant of each
tendering Beneficial Owner of Remarketed
Notes subject to a remarketing, by book
entry through DTC by the close of business
on the Interest Rate Adjustment Date
against delivery through DTC of such
Beneficial Owner's tendered Remarketed
Notes, of: (i) the purchase price for such
tendered Notes that have been sold in the
remarketing, and (ii) if any such Notes
were subject to purchase as described under
"Failed Remarketings" below, the
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purchase price of such Remarketed Notes
plus accrued interest, if any, to such
date.
Interest payable on any Remarketed Note on any
Interest Rate Adjustment Date will be paid in
accordance with the procedures set forth in
Part V below.
The Remarketing Agents may, in accordance with
the Remarketed Notes, modify the settlement and
remarketing procedures set forth above in order
to facilitate the settlement and remarketing
process.
Not later than the Business Day following the
Interest Rate Adjustment Date, the Trustee
shall confirm to DTC the interest rate for the
following Interest Rate Period.
Failed Remarketings: By 12:15 p.m., New York City time, on any
Interest Rate Adjustment Date, the applicable
Remarketing Agent shall notify the Company and
the Trustee in writing (which includes
facsimile or appropriate electronic media), of
the principal amount of Remarketed Notes that
such Remarketing Agent was unable to remarket
at a price equal to 100% of the principal
amount thereof plus accrued interest, if any,
on such date. Such notice will constitute a
demand on the Company to purchase such
unremarketed Remarketed Notes at an aggregate
purchase price equal to 100% of the principal
amount thereof plus accrued and unpaid
interest, if any.
The Company will deposit same-day funds with
the Trustee by 3:00 p.m., New York City time,
on such Interest Rate Adjustment Date, in an
amount equal to the principal amount of such
unremarketed Remarketed Notes plus accrued and
unpaid interest, if any.
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PART V: PRINCIPAL AND INTEREST PAYMENTS
Principal: Principal of each Note will be repayable by the
Company only at the Stated Maturity thereof or
upon earlier repayment at the option of the
holders thereof (if applicable), upon earlier
redemption at the option of the Company or upon
Special Mandatory Purchase, in each case in
accordance with the terms of the Notes.
Interest: Each Note will bear interest in accordance with
its terms. Unless otherwise provided in the
applicable Pricing Supplement, interest on each
Note will accrue from and including the
Original Issue Date of such Note for the first
interest period or from the most recent
Interest Payment Date (as defined below) to
which interest has been paid or duly provided
for all subsequent interest periods to, but
excluding, the applicable Interest Payment
Date, the Stated Maturity Date or, in the case
of Remarketed Notes, the Interest Rate
Adjustment Date, or the date of earlier
redemption or repayment, as the case may be
(the Stated Maturity Date or date of earlier
redemption or repayment is referred to herein
as the "Maturity Date" with respect to the
principal repayable on such date).
Each Remarketed Note initially will earn
interest at the Initial Interest Rate for the
Initial Interest Rate Period specified in the
applicable Pricing Supplement. Thereafter,
while a Remarketed Note is in the Short Term
Rate Mode, it will earn interest during each
Short Term Rate Period at fixed rates
established by the applicable Remarketing Agent
on the first day of such Short Term Rate
Period. While a Remarketed Note is in the Long
Term Rate Mode, it will earn interest during
each Long Term Rate Period at fixed rates
established prior to the commencement of such
Long Term Rate Period and/or rates established
on the first day of such Long Term Rate Period
and reset at intervals established by the
applicable Remarketing Agent with the consent
of the Company prior to the commencement of
such Long Term Rate Period by reference to an
Interest Rate Basis established by the Company
prior to the commencement of such Long Term
Rate Period as adjusted by a Spread, if any,
and a Spread Multiplier, if any, established
prior to the commencement of such Long Term
Rate Period by the Remarketing Agent.
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Except as provided below, if an Interest
Payment Date or the Maturity Date with respect
to any Note falls on a day that is not a
Business Day, the required payment to be made
on such day need not be made on such day, but
may be made on the next succeeding Business Day
with the same force and effect as if made on
such day, and no interest shall accrue on such
payment for the period from and after such day
to the next succeeding Business Day. In the
case of a Note bearing interest at a floating
rate for which LIBOR is an applicable Interest
Rate Basis, if such Business Day falls in the
next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day. If the Maturity Date with respect
to any Note bearing interest at a floating rate
falls on a day that is not a Business Day, the
required payment to be made on such day need
not be made on such day, but may be made on the
next succeeding Business Day with the same
force and effect as if made on such day, and no
interest shall accrue on such payment for the
period from and after the Maturity Date to the
next succeeding Business Day. In case of
Remarketed Notes, each Interest Rate Adjustment
Date shall be a Business Day. "Business Day"
means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on
which banking institutions are authorized or
required by law, regulation or executive order
to close in the City of New York, New York or
Dallas, Texas; provided, however, that, with
respect to Notes as to which LIBOR is an
applicable Interest Rate Basis, such day is
also a London Business Day. "London Business
Day" means a day on which dealings in the
Designated LIBOR Currency are transacted in the
London interbank market.
Calculation of Interest: Unless otherwise set forth in the applicable
Note, Interest (including payments for partial
periods) on Fixed Rate Notes, and Remarketed
Notes bearing interest at a fixed rate during a
Long Term Rate Period will be calculated and
paid on the basis of a 360-day year of twelve
30-day months. Interest (including payments for
partial periods) on Remarketed Notes bearing
interest at a fixed rate during a Short Term
Rate Period will be calculated and paid on the
basis of actual days elapsed over 360 (or over
the actual number of days in the year if an
applicable Interest Rate Basis is the CMT Rate
or Treasury Rate).
Floating interest rates will be calculated by
reference to the specified Interest Rate Basis
plus or minus the applicable
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Spread, if any, and/or multiplied by the
applicable Spread Multiplier, if any.
Unless otherwise provided in the applicable
Pricing Supplement, interest on each Floating
Rate Note will be calculated by multiplying its
principal amount by an accrued interest factor.
Such accrued interest factor is computed by
adding the interest factor calculated for each
day in the period for which accrued interest is
being calculated. Unless otherwise provided in
the applicable Pricing Supplement, the interest
factor for each such day is computed by
dividing the interest rate applicable to such
day by 360 if the CD Rate, Commercial Paper
Rate, Eleventh District Cost of Funds Rate,
Federal Funds Rate, LIBOR or Prime Rate is an
applicable Interest Rate Basis, or by the
actual number of days in the year if the CMT
Rate or Treasury Rate is an applicable Interest
Rate Basis. As provided in the applicable
Pricing Supplement, the interest factor for
Notes for which the interest rate is calculated
with reference to two or more Interest Rate
Bases will be calculated in each period in the
same manner as if only the lowest, highest or
average of the applicable Interest Rate Bases
applied.
Interest Rate Basis Applicable Unless otherwise provided in the applicable
to Floating Interest Rates: Pricing Supplement, Floating Interest Rates
will be determined by reference to the CD Rate,
the CMT Rate, the Commercial Paper Rate, the
Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR, the Prime Rate, the
Treasury Rate, or such other interest rate
basis or formula as may be set forth in the
applicable Pricing Supplement or, in the case
of Remarketed Notes, Floating Interest Rate
Notice or by reference to two or more such
rates, as adjusted by the applicable Spread
and/or Spread Multiplier, if any.
Unless otherwise specified in the applicable
Pricing Supplement, with the consent of the
applicable Remarketing Agent, a floating
interest rate will apply to any Long Term Rate
Period for a Remarketed Note specified by the
Company upon receipt by the Trustee and the
Remarketing Agent of a notice in or confirmed
in writing (a "Floating Interest Rate Notice")
from the Company not less than eleven (11)
Business Days prior to the Interest Rate
Adjustment Date for such Long Term Rate Period.
Each Floating Interest Rate Notice must state
each Remarketed Note to which it relates and
the Long Term Rate Period to which it relates,
and must also state that the Beneficial Owners
of each such Remarketed Note will
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be deemed to have tendered each such Remarketed
Note as of the Conversion Date and will not be
entitled to further accrual of interest on each
such Remarketed Note after such date.
Each Floating Interest Rate Notice must also
state whether the floating interest rate is a
"Regular Floating Rate," a "Floating Rate/Fixed
Rate" or an "Inverse Floating Rate," the Fixed
Rate Commencement Date, if applicable, the
Fixed Interest Rate, if applicable, the
Interest Rate Basis, the Initial Interest Rate,
if any, the Initial Interest Reset Date, the
Interest Reset Period and Dates, the Interest
Payment Period and Dates, the Index Maturity
and the Maximum Interest Rate and/or the
Minimum Interest Rate, if any. If one or more
of the applicable Interest Rate Basis is LIBOR
or the CMT Rate, the Floating Interest Rate
Notice will also specify the Index Currency and
Designated LIBOR Page or the Designated CMT
Maturity Index and Designated CMT Telerate
Page, respectively.
Redemption: The Notes will be subject to redemption by the
Company in accordance with the terms of the
Notes. Terms of redemption, if any, during the
Initial Interest Rate Period for any Remarketed
Note will be fixed at the time of sale of such
Remarketed Note and set forth in the applicable
Pricing Supplement.
Repayment: The Notes will be subject to repayment by the
Company at the option of the holders thereof in
accordance with the terms of the Notes. In the
case of Remarketed Notes, terms of repayment,
if any, during the Initial Interest Rate Period
for any Note will be fixed at the time of sale
of such Remarketed Note and set forth in the
applicable Pricing Supplement.
Record Dates: Unless otherwise provided in the applicable
Pricing Supplement, the "Regular Record Date"
for a Fixed Rate Note or Floating Rate Note
shall be the date 15 calendar days (whether or
not a Business Day) preceding the applicable
Interest Payment Date.
In the case of Remarketed Notes, for the
Initial Interest Rate Period, the Record Dates
will be specified in the applicable Pricing
Supplement or, if not so specified, the
Business Day next preceding the related
Interest Payment Date. Thereafter, unless
otherwise specified in the applicable Pricing
Supplement, the Record Date for each Interest
Payment Date will be (y) in the case of each
Short Term Rate Period, the
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Business Day next preceding such Interest
Payment Date, and (z) in the case of each Long
Term Rate Period, the 15th day (whether or not
a Business Day) prior to such Interest Payment
Date.
Interest Payment Dates: Interest payments will be made on each Interest
Payment Date commencing with the first Interest
Payment Date following the Original Issue Date.
Unless otherwise provided in the applicable
Pricing Supplement, interest payments on Fixed
Rate Notes will be made semiannually in arrears
on March 1 and September 1 of each year and on
the Maturity Date, while interest payments on
Floating Rate Notes will be made as specified
in the applicable Pricing Supplement.
Interest on each Remarketed Note during the
Initial Interest Rate Period will be payable on
the Interest Payment Date or Dates specified in
the applicable Pricing Supplement. Thereafter,
unless otherwise specified in the applicable
Pricing Supplement, the Interest Payment Dates
for such Remarketed Note will be determined as
follows: (i) interest with respect to each
Short Term Rate Period will be payable on the
Business Day next following such Short Term
Rate Period; and (ii) interest with respect to
each Long Term Rate Period will be payable no
less than semiannually on such dates as are
established by the Company and the Remarketing
Agent prior to the commencement of each Long
Term Rate Period in the case of a fixed
interest rate, and as specified in the
applicable Floating Interest Rate Notice in the
case of a floating interest rate.
Payments of Principal, Payments of Interest Only. Promptly after each
Premium, if any, and Interest Regular Record Date, the Trustee will deliver
on Book-Entry Notes (other to the Company a written notice specifying by
than Special Mandatory CUSIP number the amount of interest to be paid
Purchase of a Remarketed on each Book-Entry Note on the following
Note): Interest Payment Date (other than an Interest
Payment Date coinciding with the Maturity Date)
and the total of such amounts. The Trustee and
DTC will confirm the amount payable on each
Book-Entry Note on such Interest Payment Date
in accordance with DTC's procedures as in
effect from time to time. On or before such
Interest Payment Date, the Company will pay to
the Trustee in immediately available funds an
amount sufficient to pay the interest then due
and owing on the Book-Entry Notes, and upon
receipt of such funds from the Company, the
Trustee in turn will pay to DTC
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such total amount of interest due on such
Book-Entry Notes (other than on the Maturity
Date) at the times and in the manner set forth
below under "Manner of Payment".
Payments at Maturity. Not less than 15 days nor
more than 60 days prior to the Maturity Date of
any Book-Entry Note (subject to the Trustee
having received prior notice of redemption, if
applicable), the Trustee will deliver to the
Company a written list of principal, premium,
if any, and interest to be paid on each such
Book-Entry Note. The Trustee and the Company
will confirm the amounts of such principal,
premium, if any, and interest payments with
respect to each such Book-Entry Note on or
about the fifth Business Day preceding the
Maturity Date of such Book-Entry Note. The
Trustee and DTC will confirm such amounts in
accordance with DTC's procedures as in effect
from time to time. On or before the Maturity
Date, the Company will pay to the Trustee in
immediately available funds an amount
sufficient to make the required payments, and
upon receipt of such funds the Trustee in turn
will pay to DTC the principal amount of
Book-Entry Notes, together with premium, if
any, and interest due on the Maturity Date, at
the times and in the manner set forth below
under "Manner of Payment". Promptly after
payment to DTC of the principal, premium, if
any, and interest due on the Maturity Date of
such Book-Entry Note, the Trustee will cancel
such Book-Entry Note and deliver to the Company
an appropriate debit advice. On the first
Business Day of each month, the Trustee will
deliver to the Company a written statement
indicating the total principal amount of
outstanding Book-Entry Notes as of the close of
business on the immediately preceding Business
Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due on
Book-Entry Notes on any Interest Payment Date
or the Maturity Date, as the case may be, shall
be paid by the Company to the Trustee in funds
available for use by the Trustee no later than
10:00 a.m., New York City time, on such date.
The Company will make such payment on such
Book-Entry Notes to an account specified by the
Trustee. Thereafter on such date, DTC will
debit the account of the Trustee and pay, in
accordance with its SDFS operating procedures
then in effect, such amounts in funds available
for immediate use to the respective DTC
participants in whose names the beneficial
interests in such Book-Entry Notes are recorded
in the book-entry system maintained by DTC.
Neither the Company nor the Trustee shall have
any
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responsibility or liability for the payment by
DTC of the principal of, or premium, if any, or
interest on, the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry Note
will be determined and withheld by the DTC
participant, indirect participant in DTC or
other Person responsible for forwarding
payments and materials directly to the
beneficial owner of such Book-Entry Note.
Payments of Principal, Upon presentment and delivery of the
Premium, if any, and Interest Certificated Note, the Trustee upon receipt of
on Certificated Notes: immediately available funds from the Company
will pay the principal of, premium, if any, and
interest on, each Certificated Note on the
Maturity Date in immediately available funds.
All interest payments on a Certificated Note,
other than interest due on the Maturity Date,
will be made by check mailed to the address of
the person entitled thereto as such address
shall appear in the Security Register;
provided, however, that Holders of $10,000,000
or more in aggregate principal amount of
Certificated Notes (whether having identical or
different terms and provisions) shall be
entitled to receive such interest payments by
wire transfer of immediately available funds if
appropriate wire transfer instructions have
been received in writing by the Trustee not
less than 15 calendar days prior to the
applicable Interest Payment Date.
The Trustee will provide monthly to the Company
a list of the principal, premium, if any, and
interest to be paid on Certificated Notes
maturing in the next succeeding month. The
Trustee will be responsible for withholding
taxes on interest paid as required by
applicable law.
Certificated Notes presented to the Trustee on
the Maturity Date for payment will be canceled
by the Trustee. All canceled Certificated Notes
held by the Trustee shall be destroyed, and the
Trustee shall furnish to the Company a
certificate with respect to such destruction.
Payments of Principal and Upon notice to the Company by a Remarketing
Interest (Special Mandatory Agent of a failed remarketing of a Remarketed
Purchase of a Remarketed Note on any Interest Rate Adjustment Date, as
Note): described in Part II above, the Company will
pay in immediately available funds by deposit
to the account of the Trustee an amount
sufficient to pay 100% of the principal amount
of such Note subject to Special
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Mandatory Purchase, plus accrued and unpaid
interest, if any, and upon receipt of such
funds the Trustee in turn will pay to DTC, the
principal amount of such Remarketed Note,
together with interest, if any, due at such
Interest Rate Adjustment Date, at the times and
in the manner set forth below under "Manner of
Payment". Promptly after payment to DTC of the
principal and interest, if any, due on such
Interest Rate Adjustment Date, the Company may
cause the Trustee to cancel the Remarketed Note
in accordance with the Indentures, subject to
Section 309 thereof.
Manner of Payment. The total amount of any
principal and interest, if any, due on
Remarketed Notes subject to Special Mandatory
Purchase on any Interest Rate Adjustment Date
shall be paid by the Company to the Trustee in
funds available for use by the Trustee no later
than 3:00 p.m., New York City time, on such
date. The Company will make such payment on
such Note to the account specified by the
Trustee. Thereafter on such date, DTC will
debit the account of the Trustee and pay, in
accordance with its SDFS operating procedures
then in effect, such amounts in funds available
for immediate use to the respective DTC
participants in whose names such Remarketed
Note is recorded in the book-entry system
maintained by DTC. Neither the Company, the
Trustee nor the Remarketing Agent shall have
any responsibility or liability for the payment
by DTC of the principal of, or interest, if
any, on, the Remarketed Note to such DTC
participants.
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SCHEDULE I
SUBSIDIARIES OF CENTEX CORPORATION
THAT ARE NOT DIRECTLY OR INDIRECTLY WHOLLY-OWNED
[CONFIRM]
Percent of Outstanding Equity Interests Owned
Subsidiary Directly or Indirectly 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. [62.60%]
Centex Development 1, LLC 98.00%
Centex Development Holding Company UK Limited 93.50%
Fairclough Homes Group Limited 93.50%
Fairclough Homes Limited 93.50%
Fairpine Limited 50.00%
Viewton Properties Limited 50.00%
Centex Homes International B.V. 93.50%
Centex Latin America, Inc. 95.00%
900 Development Corporation 95.00%
Inverloma, S. de R.L. de C.V. 30.00%
Centex Rodgers No. 1, LLC 99.00%
Centex-Rooney/HLM Correctional Design/Builders, L.C. 70.00%
Centex-Rooney National Development, J.V. 75.00%
Centex-Rooney/RS&H Design Builders, L.C. 90.00%
Centex-Rooney Schenkel Shultz Design/Builders, L.C. 50.00%
Centex Seismic Services, Inc. 95.00%
Centex Urban LLC 95.00%
Charles Church Homes Limited 50.00%
Copper Canyon Development Company LLC 45.70%
CSL Agnews Development, LLC 33.33%
GV Northfield I LLC 50.00%
M&W General Construction Company 49.00%
Nomas Corp. 49.90%
Nomas Development Company, LLC 49.90%
ST Lending, Inc. 49.90%
Parcel E, LLC 75.00%
PDG/Prescott Development Group, L.L.C. 50.00%
Rural Southwest Housing Company, L.L.C. 50.00%
Seabreeze, LLC 66.70%
Sun Built Development, LLC 49.00%
The Student Communities Group, L.C. 50.00%
Wayne Homes, LLC 97.00%
Arlington Mortgage, Inc. 97.00%
Westfest, LLC 50.00%
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Windemere BLC Land Company 33.33%
Wholly-owned subsidiaries of Centex Construction Production, Inc.:
CCP Cement Company
Mountain Cement Company
Nevada Cement Company
Texas Cement Company
Western Cement Company of California
CCP Concrete/Aggregates Company
BP Sand & Gravel, Inc.
Centex Materials, Inc.
Mathews Readymix, Inc.
Western Aggregates, Inc.
CCP Gypsum Company
American Gypsum Company
CEGC Holding Company
Centex Eagle Gypsum Company
Centex Eagle Gypsum Company, L.L.C.
M&W Drywall Supply Company
Galtco, Inc.
CCP Land Company
Centex Cement Corporation
2