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EXHIBIT 1.1
CENTEX CORPORATION
$500,000,000
Senior Medium-Term Notes, Series E
Subordinated Medium-Term Notes, Series E
Due 9 Months or More from Date of Issue
DISTRIBUTION AGREEMENT
March 22, 2001
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
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
UBS Warburg 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 and sale from time to time by the Company of
its Senior Medium-Term Notes, Series E (the
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"Senior Notes") and its Subordinated Medium-Term Notes, Series E (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 Seventh
Supplemental Indenture thereto dated as of March 22, 2001, and the Subordinated
Notes will be issued under a Subordinated Indenture (the "Subordinated
Indenture") dated as of March 12, 1987, as supplemented by an eighth
Supplemental Indenture thereto dated as of March 22, 2001, 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 The Chase Manhattan Bank (successor to Chase Bank of
Texas, National Association and 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 $500,000,000 aggregate initial offering price of Notes to the Agents as
principal or through the Agents as agent pursuant to the terms of this
Agreement. It is understood, however, that the Company may from time to time
authorize the issuance and sale of additional Notes and that such additional
Notes may be sold to or through the Agents pursuant to the terms of this
Agreement, all as though the issuance and sale of such Notes were authorized as
of the date hereof.
If Notes are sold by the Company to an Agent as principal, such Agent
may purchase as principal for resale to investors and other purchasers in
accordance with the provisions of Section 2(a) hereof, and, if requested by such
Agent, the Company will enter into a Terms Agreement relating to such sale
(each, a "Terms Agreement"). If Notes are sold by the Company directly to
investors (as may from time to time be agreed to by the Company and an Agent),
such Agent will act as agent of the Company in soliciting purchases of the Notes
in accordance with the provisions of Section 2(b) hereof.
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes directly on its own
behalf, the Company hereby agrees that the Notes will be sold to or through the
Agents. The Company hereby appoints each Agent as its agent for the purpose of
soliciting and receiving offers to purchase Notes from the Company by others
and, on the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, each Agent severally and
not jointly agrees to use reasonable best efforts to solicit and receive offers
to purchase Notes upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify.
For purposes of this Agreement, all references to the Registration
Statement (as hereinafter defined), any preliminary prospectus, the Prospectus
(as hereinafter defined) or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Securities and Exchange
Commission (the "SEC") pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
1. Representations and Warranties. The Company represents and warrants
to and agrees with each Agent as of the date hereof, as of the date of each
acceptance by the Company of an offer to purchase Notes (whether to an Agent as
principal or through an Agent as agent), as of the date of each delivery of
Notes (whether to an Agent as principal or through an Agent as agent) (the date
of each such delivery being hereinafter referred to as a "Settlement Date") and
as of each date the Registration Statement (as hereinafter
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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 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. 333-49966) 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 (the "Form T-1's")), 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, to the knowledge of the Company, 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 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);
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(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 a material 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 Material Subsidiaries (as defined
below); (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, except as set forth or contemplated in the Prospectus; (iii)
no event has occurred that would result in a material write-down in assets; (iv)
there have been no material transactions entered into by the Company, other than
those publicly disclosed or in the ordinary course of business; (v) the Company
has not repurchased any of its outstanding capital stock except as set forth or
contemplated by the Prospectus; and (vi) there have been no dividends or
distributions of any kind declared, paid or made by the Company in respect of
its capital stock except for regular cash dividends paid in the ordinary course
of business;
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(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; each
subsidiary of the Company that is material to the business, assets or financial
condition of the Company and its subsidiaries, taken as a whole ("Material
Subsidiary"), is set forth on Schedule I hereto; each Material Subsidiary has
been duly incorporated (if a corporation) or formed (if a partnership or a
limited liability company), and is validly existing as a corporation,
partnership or limited liability company, as the case may be, in good standing
under the laws of its jurisdiction of incorporation or formation, as the case
may be; each of the Company and each Material Subsidiary has all necessary
corporate, partnership or limited liability company power and authority 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 Material 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 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;
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(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, could reasonably be expected to have, individually or
in the aggregate, a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others;
(k) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act and the rules and regulations of
the SEC thereunder;
(l) The Company has no knowledge of any default in any material
obligation to be performed by any party to any agreement to which it or any of
its subsidiaries is a party, which default or defaults in the aggregate would
have a material adverse effect upon the business, assets, financial position, or
prospects of the Company and its subsidiaries, considered as a whole;
(m) The consolidated financial statements of the Company and its
subsidiaries, including accompanying notes, included or incorporated by
reference in the Registration Statement and the Prospectus, comply in all
material respects with the requirements of the Securities Act and fairly present
the consolidated financial position and the consolidated results of the
operations of the Company and its subsidiaries at the respective dates and for
the respective periods to which they apply, and such financial statements have
been prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved except as may be expressly
stated in the notes thereto;
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(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, could reasonably
be expected to 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 and except for those which
the failure to own or possess would not have a material adverse effect on the
business of the Company and its subsidiaries taken as a whole, each of the
Company and its subsidiaries owns or possesses all of the patents, trademarks,
service marks, trade names, copyrights and licenses and rights with respect to
the foregoing, necessary for the present conduct of its business, without any
known conflict with the rights of others, the result of which conflict would
materially and adversely affect the business, assets, financial position or
prospects of the Company and its subsidiaries, taken as a whole;
(q) There are no contracts, indentures, mortgages, loan agreements,
notes, bonds, debentures, other evidences of indebtedness, leases or other
agreements or instruments of the Company of a character required to be described
or referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or referred to or
filed as required;
(r) No labor disturbance exists with the employees of the Company or
any of its subsidiaries, or, to the best of the Company's knowledge, is
imminent, that would result in a material adverse effect upon the Company and
its subsidiaries, taken as a whole, and the Company has not received notice of
any existing or imminent labor disturbance by the employees of any of its
principal suppliers, that might reasonably be expected to materially adversely
affect the business, assets, financial position or prospects of the Company and
its subsidiaries, taken as a whole;
(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
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duly authorized, executed and delivered by the Remarketing Agent (as defined in
the Prospectus), will be a valid and legally binding agreement of the Company;
and
(u) Neither the Company nor any of its subsidiaries is required to be
registered under the Investment Company Act of 1940, as amended.
Any certificate signed by any director or officer of the Company and
delivered to the Agents or their counsel in connection with an offering of Notes
to an Agent as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent as to the matters
covered thereby on the date of such certificate and at each Representation Date
subsequent thereto.
2. Purchases as Principal; Solicitations as Agent.
(a) No Agent shall have any obligation to purchase Notes from the
Company as principal, but an Agent may agree from time to time to purchase Notes
as principal. Each sale of Notes to an Agent as principal shall be made in
accordance with the terms of this Agreement, except as otherwise agreed by such
Agent and the Company, and, if requested by such Agent, the Company will enter
into a Terms Agreement that will provide for the sale of such Notes to and the
purchase thereof by such Agent. Each Terms Agreement will be either (i)
substantially in the form of Exhibit A (in the case of Senior Notes) or Exhibit
B (in the case of Subordinated Notes) hereto, (ii) in the form of an exchange of
any form of written telecommunication between an Agent and the Company or (iii)
an oral agreement between an Agent and the Company confirmed in writing by such
Agent to the Company.
Each agreement by an Agent to purchase Notes as principal (whether or
not set forth in a Terms Agreement) shall specify the principal amount of Notes
to be purchased by such Agent pursuant thereto, the maturity date of such Notes,
the price to be paid to the Company for such Notes, the interest rate and
interest rate formula, if any, applicable to such Notes and any other terms of
such Notes. Each such agreement shall also specify any requirement for officers'
certificates, opinions of counsel and letters from the independent public
accountants to the Company pursuant to Sections 5 and 6 hereto.
Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. With respect to each sale of Notes to an Agent as
principal that is not made pursuant to a Terms Agreement, the procedural details
relating to the issue and delivery of such Notes and the payment therefor shall
be as set forth in the Administrative Procedures (as hereinafter defined).
Each purchase of Notes by an Agent as principal, unless otherwise
agreed, shall be at a discount from the principal amount of each such Note
equivalent to the applicable commission set forth in Subsection (b) hereof. Each
Agent may engage the services of any other broker or dealer in connection with
the resale of any Notes purchased by such Agent as principal and may 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
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Prospectus (and any supplement thereto) and in the Administrative Procedures. In
soliciting offers to purchase the Notes as agents, each Agent is acting solely
as an agent for the Company, and not as a principal, and does not assume any
obligation toward or relationship of agency or trust with any purchaser of
Notes. Each Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company, but no Agent shall have any
liability to the Company in the event any such purchase is not consummated for
any reason. If the Company shall default in its obligations to deliver Notes to
a purchaser whose offer it has accepted, the Company shall hold each Agent
harmless against any loss, claim, damage or liability arising from or as a
result of such default and shall, in particular, pay to each Agent the
commission each Agent would have received had such sale been consummated.
The Company may appoint additional agents in connection with the
offering of the Notes; provided that (i) the Company promptly notifies each
Agent of such appointment and (ii) the commission paid to any such additional
agent with respect to the sale of Notes by the Company as a result of a
solicitation made by such additional agent is the same as that percentage
specified below of the aggregate principal amount of such Notes sold by the
Company; and provided further that, unless the appointment of such additional
agent is expressly limited to the solicitation of offers to purchase a specified
principal amount of Notes on specified terms, such additional agent enters into
an agreement with the Company making such agent an Agent under this Agreement or
enters into an agreement with the Company on terms which are substantially
similar to those contained in this Agreement, which agreement shall include
appropriate changes to reflect the arrangements between the Company and such
additional agent. The Company may from time to time offer Notes for sale
otherwise than through an Agent.
No Agent is authorized to appoint sub-agents with respect to Notes sold
through an Agent as agent.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes (other than Notes held by the Agents
that were purchased from the Company as principal). As soon as practicable after
receipt of instructions from the Company, each Agent will forthwith suspend
solicitations of offers to purchase Notes from the Company until such time as
the Company has advised the Agents that such solicitation may be resumed. While
such solicitation is suspended, the Company shall not be required to deliver any
certificates, opinion or letter in accordance with Sections 6(a), (b) and (c);
provided, however, that if the Registration Statement or the Prospectus is
amended or supplemented during the period of suspension (other than by an
amendment or supplement providing solely for a change in the interest rates of
the Notes or for a change the Agents deem to be immaterial), no Agent shall be
required to resume soliciting offers to purchase Notes until the Company has
delivered such certificates, opinions and letters an 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:
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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.
(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
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Procedures (attached hereto as Exhibit C) (the "Administrative Procedures"), as
amended from time to time. The Administrative Procedures may be amended only by
written agreement of the Company, each Agent and the Trustee. The Company will
furnish to the Trustee a copy of the Administrative Procedures as from time to
time in effect. The Company agrees to cause the Trustee to agree to perform the
duties and obligations specifically provided to be performed by the Trustee in
such Administrative Procedures.
3. Agreements. The Company agrees with each Agent that:
(a) The Company will notify each Agent immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the SEC for filing of any amendment or
supplement to the Prospectus or any document to be filed pursuant to the
Exchange Act which will be incorporated by reference in the Prospectus (other
than any amendment, supplement or document relating solely to securities other
than the Notes), (iii) the receipt of any comments from the SEC with respect to
the Registration Statement or the Prospectus, (iv) any request by the SEC for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will give each Agent notice of its intention to file or
prepare any additional registration statement with respect to the registration
of additional Notes, any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (other than an amendment or supplement
providing solely for a change in the interest rates or formula applicable to the
Notes or relating solely to the issuance and/or offering of securities other
than the Notes), whether by the filing of documents pursuant to the Exchange
Act, the Securities Act or otherwise, and will furnish each Agent with copies of
any such amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or preparation, as
the case may be, and will not file any such amendment or supplement or other
documents in a form to which an Agent or its counsel shall reasonably object.
(c) The Company will deliver to the Agents as many signed and conformed
copies of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus as the Agents shall reasonably request so long as 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
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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.
The Company shall 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
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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 into any agreement to sell, any
debt securities of the Company (other than the Notes (or the Company's Senior
Medium-Term Notes, Series C, the Company's Subordinated Medium-Term Notes,
Series C, the Company's Senior Medium-Term Notes, Series D or the Company's
Subordinated Medium-Term Notes, Series D) that are to be sold pursuant to such
agreement, notes sold pursuant to any Euro medium-term note program established
by the Company 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:
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(i) the preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(ii) the preparation, filing and reproduction of this
Agreement and any Terms Agreements;
(iii) the preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(iv) the fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel, and of any Calculation
Agent;
(v) the reasonable fees and disbursements of your counsel
incurred in connection with the establishment of the program relating
to the Notes and incurred from time to time in connection with the
transactions contemplated hereby;
(vi) the qualification of the Notes under state securities
laws in accordance with the provisions of Section 3(h) hereof,
including filing fees and the reasonable fees and disbursements of your
counsel in connection therewith and in connection with the preparation
of any Blue Sky Survey and any Legal Investment Survey;
(vii) the preparation and delivery to each Agent in quantities
as hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by each Agent of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(viii) the preparation, reproducing and delivery to each Agent
of copies of the Indentures and all supplements and amendments thereto;
(ix) any fees charged by rating agencies for the rating of the
Notes;
(x) the fees and expenses incurred in connection with the
listing of the Notes on any securities exchange if the Company agrees
to list the Notes;
(xi) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
(xii) any advertising and other out-of-pocket expenses an
Agent incurs with the approval of the Company; and
(xiii) the cost of providing any CUSIP or other identification
numbers for the Notes.
It is understood, however, that, except as otherwise 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.
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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.
(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.
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(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;
(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 (1) certificates of other officers of the
Company in identifying the jurisdictions in which the Company
transacts business or conducts activities and (2) certificates
issued by various state authorities as deemed necessary by
such counsel);
(iv) Each Material Subsidiary of the Company has been
duly incorporated (if a corporation) or formed (if a
partnership or limited liability company) and is validly
existing as a corporation, partnership or limited liability
company, as the case may be, in good standing (if applicable,
in the case of a partnership or limited liability company)
under the laws of its jurisdiction of incorporation or
formation, as the case may be; and all of the outstanding
shares of capital stock, partnership interests or membership
interests, as the case may be, of each Material Subsidiary
have been duly and validly authorized and issued, are fully
paid and nonassessable (subject, in the case of any
partnership interest or
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limited liability company interest, to obligations or
commitments to make future capital contributions), and (except
(i) for directors' qualifying shares and interests, (ii) as
set forth in Schedule I hereto, or (iii) as otherwise set
forth in the Prospectus) are, to the best of such counsel's
knowledge, 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 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;
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(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 (A) the
provisions of the Articles of Incorporation, as amended or
restated, or the Bylaws of the Company, (B) any statute or
order, rule or regulation of the United States, the State of
Texas or the State of Nevada (it being understood that such
counsel need express no opinion as to compliance with any
state securities or federal or state anti-fraud statute, rule
or regulation, except as otherwise expressly stated in such
counsel's opinion) or (C) any judgment, order or decree known
to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except in the case of
clause (B) or (C) for any such violations which would not have
a material adverse effect on the company and its subsidiaries,
taken as a whole;
(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;
(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,
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
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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, (2) the other financial information
included or incorporated by reference therein and (3) the Form
T-1's, 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 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, (ii) the other financial
information included therein and (iii) the Form T-1's, 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,
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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 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.
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(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 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
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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 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).
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(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, (ii) there is filed with the SEC any document incorporated by reference
into the Prospectus which contains additional financial information or (iii) (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;
(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;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with information furnished to the Company in
writing by each Agent expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) or
in reliance upon the Trustee's Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 filed as an exhibit to the Registration
Statement.
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(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 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
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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 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
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26
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.
(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:
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(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.
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
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28
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
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
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Attention: Martha Bailey, Investment Banking Legal
Telephone: 212-816-5831
Telecopy: 212-816-0949
UBS Warburg LLC
677 Washington Blvd.
Stamford, CT 06901
Attention: Debt Syndicate
Telephone: 203-719-1342
Telecopy: 203-719-7139
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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: Associate Director
BANC OF AMERICA SECURITIES LLC
By /s/ LYNN McCONNELL
-----------------------------------------
Title: Managing Director
CHASE SECURITIES INC.
By /s/ JOSE PADILLA
-----------------------------------------
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: Principal
SALOMON SMITH BARNEY INC.
By /s/ MARTHA D. BAILEY
-----------------------------------------
Title: First Vice President & Counsel
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UBS WARBURG LLC
By /s/ A. PETER FOOTE
-----------------------------------------
Title: Executive Director
By /s/ JOHN DOHERTY
-----------------------------------------
Title: Director
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32
EXHIBIT A
CENTEX CORPORATION
SENIOR MEDIUM-TERM NOTES, SERIES E
TERMS AGREEMENT
, 20
----------- --
Centex Corporation
2728 North Harwood Street
Dallas, Texas 75201
Attention:
Re: Distribution Agreement dated March 22, 2001
(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:
33
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Settlement Date and Time:
Additional/Other Terms:
The certificates, opinions and letters referred to in Sections
6(a), (b) and (c) of the Distribution Agreement [will/will not] be required.
All provisions contained in the Distribution Agreement, dated
March 22, 2001, 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 B
CENTEX CORPORATION
SUBORDINATED MEDIUM-TERM NOTES, SERIES E
TERMS AGREEMENT
, 20
----------- --
Centex Corporation
2728 North Harwood Street
Dallas, Texas 75201
Attention:
Re: Distribution Agreement dated March 22, 2001
(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:
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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
March 22, 2001, 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 E
(DATED AS OF MARCH 22, 2001)
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,
Salomon Smith Barney Inc. and UBS Warburg LLC (individually, an "Agent" and
collectively, the "Agents"), pursuant to a Distribution Agreement dated March
22, 2001 (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. 7 thereto dated as of March 22, 2001 (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. 8 thereto dated as of
March 22, 2001 (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 The Chase Manhattan Bank, as trustee
with respect to the Notes (formerly, Chase Bank of Texas, National Association
and 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. 333-49966) (the "Registration
Statement"), with respect to debt securities, including the Notes, has been
filed under the Securities Act of 1933, as
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amended (the "1933 Act"), with the Securities and Exchange Commission (the
"Commission") and declared effective on December 7, 2000. The most recent base
Prospectus included in the Registration Statement, as supplemented by the
Prospectus Supplement dated March 22, 2001 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/
Authentication: Each Note will be dated as of the date of its
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
Supplement: If any offer to purchase a Note is accepted by 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
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Agent to investors and other purchasers (i)
at a fixed public offering price of a
specified percentage of their principal
amount, (ii) at varying prices related to
prevailing market prices at the time of
resale to be determined by the Offering
Agent or (iii) at 100% of their principal
amount;
6. with respect to Notes sold to an investor or
other purchaser through the Offering Agent
acting as agent for the Company, whether
such Notes will be sold at (i) 100% of their
principal amount or (ii) at a specified
percentage of their principal amount;
7. the Offering Agent's commission or
underwriting discount;
8. net proceeds to the Company;
9. any other provisions of the Notes material
to investors or other purchasers of the
Notes not otherwise specified in the
Prospectus.
One copy of such filed Pricing Supplement will be
sent by telecopy or overnight express (for delivery
as soon as practicable following the trade, but in no
event later than 11:00 a.m. New York City time, on
the Business Day following the applicable trade date)
to the Trustee at 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
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Desk, telecopier: (212) 761-8483; if to Salomon Smith
Barney Inc., to: 388 Greenwich Street, New York, New
York 10013, Attention: Martha Bailey,
telecopier:(212) 816-0949; if to UBS Warburg LLC, to:
677 Washington Blvd., Stamford, Connecticut 06901,
Attention: Joseph Moore, telecopier: (203) 719-7139.
For record keeping purposes, one copy of each Pricing
Supplement, as so filed, shall also be mailed or
telecopied to Milbank, Tweed, Hadley & McCloy, 1
Chase Manhattan Plaza, New York, New York 10005-1413,
Attention: Robert Williams, Esq.
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a copy of
such Pricing Supplement to each investor or purchaser
of the relevant Notes or its agent. Pursuant to Rule
434 ("Rule 434") under the 1933 Act, the Pricing
Supplement may be delivered separately from the
Prospectus. Outdated Pricing Supplements (other than
those retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by the
Company in payment for a Note and the authentication
and delivery of such Note shall, with respect to such
Note, constitute "settlement." Offers accepted by the
Company will be settled in three Business Days, or at
a time as the purchaser, the applicable Agent and the
Company shall agree, pursuant to the timetable for
settlement set forth below in Part II and in Part III
hereof under "Settlement Procedures" with respect to
Global Notes and Certificated Notes, respectively
(each such date fixed for settlement is hereinafter
referred to as a "Settlement Date"). If procedures A
and B of the applicable Settlement Procedures with
respect to a particular offer are not completed on or
before the time set forth under the "Settlement
Procedures Timetable," such offer shall not be
settled until the Business Day next following the
completion of settlement procedures A and B or such
later date as the purchaser, the applicable Agent and
the Company shall agree.
The foregoing settlement procedures may be modified,
with respect to any purchase of Notes by an Agent as
principal, if so agreed by the Company and such
Agent.
Remarketing Settlement Procedures are set forth in
Part IV hereof under Settlement Procedures for
Remarketing.
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Delivery of Prospectus and
Applicable Pricing
Supplement: A copy of the most recent Prospectus covering the
Notes and applicable Pricing 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 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
Offers from Solicitation as
Offering Agents: If agreed upon by the Offering Agent and the Company,
then the Offering Agent acting solely 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
Reference: The Company shall supply the Offering Agent 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 March 19, 2001,
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
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initially by a single Global Note in fully registered
form without coupons. All such initial terms will be
recorded by the Trustee on Annex A to such Global
Note. The terms of remarketing from time to time will
be evidenced by the records maintained by the
Trustee.
All Remarketed Notes subsequently remarketed on the
same Interest Adjustment Date in the same Interest
Rate Mode having the same Interest Rate, Interest
Rate Period and other terms will be represented by a
single Global Note.
Each Global Note will be dated and issued as of the
date of its authentication by the Trustee. The date
from which interest will begin to accrue with respect
to each Note will be (a) with respect to an original
Note (or any portion thereof), its Original Issue
Date and (b) with respect to any Note (or portion
thereof) issued subsequently upon exchange of a Note
or in lieu of a destroyed, lost or stolen Note, the
most recent Interest Payment Date to which interest
has been paid or duly provided for on the predecessor
Note or Notes (or if no such payment or provision has
been made, the Original Issue Date of the predecessor
Note or Notes), regardless of the date of
authentication of such subsequently issued Note. No
Global Note shall represent any Note issued in
certificated form.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Ratings Services (the
"CUSIP Service Bureau") for the reservation of two
series of CUSIP numbers, each series consisting of
approximately 900 CUSIP numbers which have been
reserved for and relate to the Senior Fixed Rate and
Senior Floating Rate Global Notes in the first
instance, to the Remarketed Global Notes in the
second instance, and to the Subordinated Fixed Rate
and Subordinated Floating Rate Global Notes in the
third instance. The Company has delivered to each of
the Trustee and DTC such list of such CUSIP numbers.
The Trustee will assign CUSIP numbers to the Global
Notes upon initial issuance and upon remarketing in
the case of Remarketed Notes as described above and
then advise the Company by telephone and facsimile
transmission or other electronic transmission of such
CUSIP number, after receiving from the Company the
information specified in Part I above or, as the case
may be, Part IV below.
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DTC will notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Trustee has assigned to
the Global Notes. The Trustee will notify the Company
at any time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to the Global Notes, and,
if it deems necessary, the Company will reserve and
obtain additional CUSIP numbers for assignment to the
Global Notes. Upon obtaining such additional CUSIP
numbers, the Company will deliver a list of such
additional numbers to the Trustee and DTC.
Registration: Unless otherwise specified by DTC, each Global Note
will be registered in the name of Cede & Co., as
nominee for DTC, on the register maintained by the
Trustee under the Indentures. The beneficial owner of
a Global Note (or one or more indirect participants
in DTC designated by such owner) will designate one
or more participants in DTC (with respect to such
Note, the "DTC participants") to act as agent for
such beneficial owner in connection with the
book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with
instructions provided by such DTC participants, a
credit balance with respect to such Global Note in
the account of such DTC participants. The ownership
interest of such beneficial owner in such Global Note
will be recorded through the records of such DTC
participants or through the separate records of such
DTC participants and one or more indirect
participants in DTC.
Transfers: Transfers of beneficial ownership interests in a
Global Note will be accomplished by book entries made
by DTC and, in turn, by DTC participants (and in
certain cases, one or more indirect participants in
DTC) acting on behalf of beneficial transferors and
transferees of such Global Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a)
the CUSIP numbers of two or more Global Notes
outstanding on such date that represent Global Notes
having the same Fixed Rate Terms, Floating Rate Terms
or Remarketed Terms, as the case may be (other than
Original Issue Dates), and for which interest has
been paid to the same date; (b) a date, occurring at
least 30 days after such written notice is delivered
and at least 30 days before the next Interest Payment
Date for the related Notes issued in book-entry form,
on which such Global Notes shall be exchanged for a
single replacement
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Global Note; and (c) a new CUSIP number, obtained
from the Company, to be assigned to such replacement
Global Note. Upon receipt of such a notice, DTC will
send to its Participants (including the Trustee) a
written reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to
the CUSIP Service Bureau written notice setting forth
such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP
numbers of the Global Notes to be exchanged will no
longer be valid. On the specified exchange date, the
Trustee will exchange such Global Notes for a single
Global Note bearing the new CUSIP number and the
CUSIP numbers of the exchanged Notes will, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Notes to
be exchanged exceed $400,000,000 (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 $400,000,000 (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
$400,000,000 aggregate principal amount. If one or
more Notes are issued in book-entry form in excess of
$400,000,000 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 $400,000,000 in aggregate
principal amount of such Notes issued in book-entry
form and an additional Global Note or Notes will be
issued to represent any remaining aggregate principal
amount of such Note or Notes issued in book-entry
form. In such a case each of the Global Notes
representing Notes issued in book-entry form shall be
assigned the same CUSIP number.
Settlement Procedures: Settlement Procedures with regard to each Note in
book-entry form purchased by an Agent, as principal,
or sold by an Agent, as agent of the Company, will be
as follows:
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46
A. The Offering Agent will advise the Company by
telephone, confirmed by facsimile or appropriate
electronic media, of the following Settlement
information:
1. Principal amount of the Note.
2. (a) For Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being issued
with Original Issue Discount and,
if so, the terms thereof.
(b) For Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier, if
any.
(v) Initial Interest Reset Date or
Interest Reset Date.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum Interest
Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
(c) For Remarketed Notes:
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(i) Initial Interest Rate.
(ii) Initial Interest Rate Period.
(iii) First Interest Rate Adjustment
Date.
(iv) Interest Payment Date(s) and Record
Dates in respect of the Initial
Interest Rate Period.
(v) Redemption or Repayment provisions,
if any, applicable to the Initial
Interest Rate Period and the name
of the Remarketing Agent, if any.
3. Price to public, if any, of such Note (or
whether such Note is being offered at
varying prices relating to prevailing market
prices at time of resale as determined by
the Offering Agent).
4. Trade Date.
5. Settlement Date (Original Issue Date).
6. Stated Maturity Date.
7. Net proceeds to the Company.
8. The Offering Agent's commission or
underwriting discount.
9. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
10. Identification number of DTC participant
account maintained on behalf of the Offering
Agent.
11. Redemption provisions, if any.
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12. Repayment provisions, if any.
13. Default Rate, if any.
14. Such other information specified with
respect to such Note.
B. The Trustee will assign a CUSIP number to the Global
Note representing such Note (which CUSIP number
assigned to each Note shall consist of the base
issuer number and three additional positions to form
a CUSIP number unique to that issuance) after being
advised by the Company by facsimile transmission or
other electronic transmission of the above settlement
information received from the Offering Agent and the
name of the Offering Agent.
C. The Trustee will communicate to DTC and the Offering
Agent through DTC's Participant Terminal System
same-day settlement issuance instructions specifying
the following settlement information:
1. The information set forth in Settlement
Procedure A.
2. Identification numbers of the participant
accounts maintained by DTC on behalf of the
Trustee and the Offering Agent.
3. Identification of the Note as a Fixed Rate
Note, Floating Rate Note or a Remarketed
Note.
4. Initial Interest Payment Date for such Note,
number of days by which such date succeeds
the related record date for DTC purposes
and, if then calculable, the amount of
interest payable on such Interest Payment
Date.
5. CUSIP number of the Note.
6. Such other information as DTC may require in
accordance with its procedures as in effect
from time to time in order to enter an SDFS
deliver order through DTC's Participant
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Terminal System (i) debiting such Note to
the Trustee's participant account and
crediting such Note to the participant
account of the Offering Agent maintained by
DTC and (ii) debiting the settlement account
of the Offering Agent and crediting the
settlement account of the Trustee maintained
by DTC, in an amount equal to the price of
such Note less the Offering Agent's discount
or underwriting commission, as applicable.
DTC will arrange for each pending deposit
message described above to be transmitted to
the CUSIP Service Bureau (in the case of any
Remarketed Note, provided that the Initial
Interest Rate Period is more than 270 days).
D. The Trustee will complete Annex A to the Global Note
and authenticate the book-entry note representing the
Note.
E. DTC will credit such Note to the participant account
of the Trustee maintained by DTC.
F. The Trustee will enter the SDFS deliver order to (i)
debit the Note to the Trustee's participant account
and credit such Note to the participant account of
the Offering Agent and (ii) debit the settlement
account of the Offering Agent and credit the
settlement account of the Trustee. Any entry of such
a deliver order shall be deemed to constitute a
representation and warranty by the Trustee to DTC
that (i) the Global Note representing such Note has
been issued and authenticated and (ii) the Trustee is
holding such Global Note pursuant to the Certificate
Agreement.
G. In the case of Notes sold through the Offering Agent,
as agent, the Offering Agent will enter an SDFS
deliver order through DTC's Participant Terminal
System instructing DTC (i) to debit such Note to the
Offering Agent's participant account and credit such
Note to the participant account of the DTC
participants maintained by DTC, (ii) to debit the
settlement accounts of such DTC participants and
credit the settlement account of the Offering Agent
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maintained by DTC in an amount equal to the initial
public offering price of such Note. In any case, the
Offering Agent, acting as agent or as principal, will
enter an SDFS deliver order instructing DTC to debit
the settlement account of the Offering Agent and
credit the settlement account of the Trustee in such
amount less the Offering Agent's discount or
commission.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures F and G
will be settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
I. Upon receipt, the Trustee will pay the Company, by
wire transfer of immediately available funds to an
account specified by the Company to the Trustee from
time to time, in the amount transferred to the
Trustee in accordance with Settlement Procedure F.
J. The Trustee will send a copy of the book-entry note
representing the Note by first class mail to the
Company together with a statement setting forth the
principal amount of Notes Outstanding as of the
related Settlement Date after giving effect to such
transaction and all other offers to purchase Notes of
which the Company has advised the Trustee but which
have not yet been settled.
K. If the Note was sold through the Offering Agent, as
agent, the Offering Agent will confirm the purchase
of such Note to the investor or other purchaser
either by transmitting to the DTC participant with
respect to such Note a confirmation order through
DTC's Participant Terminal System or by mailing a
written confirmation to such investor or other
purchaser.
Settlement
Procedures
Timetable: For offers to purchase Notes accepted by the Company,
Settlement Procedures "A" through "K" set forth above shall be
completed as soon as possible but not later than the
respective times (New York City time) set forth below:
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SETTLEMENT
PROCEDURE TIME
A. 11:00 a.m. on the trade date or
within one hour following the trade
B. 12:00 noon on the trade date or
within one hour following the trade
C. No later than the close of business
on the Business Day prior to the
trade date, in the case of pending
instructions, and otherwise between
8:00 a.m. and 1:30 p.m. on the
Settlement Date
D. 9:00 a.m. on Settlement Date
E. 3:00 p.m. on Settlement Date
F. 3:00 p.m. on Settlement Date
G. 3:00 p.m. on Settlement Date
H. 4:00 p.m. on Settlement Date
I.-K. 5:00 p.m. on Settlement Date
Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the Settlement
Date.
If settlement of a Note is rescheduled or canceled,
the Trustee will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 5:00 p.m., New York
City time, on the Business Day immediately preceding
the scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note pursuant to Settlement
Procedure F, the Trustee may deliver to DTC, through
DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the participant account of the
Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant
account contains a principal amount of the Notes that
is at least equal to the principal amount to be
debited. If withdrawal messages are processed with
respect to all the Notes evidenced by a Global
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Note, the Trustee will mark such Global Note
"canceled", make appropriate entries in its records
and send certificate of destruction of such canceled
Global Note to the Company. The CUSIP number assigned
to such Global Note shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not
immediately reassigned. If withdrawal messages are
processed with respect to a portion of the Notes
represented by a single Global Note, the Trustee will
exchange such Global Note for two Notes, one of which
shall represent the Notes for which withdrawal
messages are processed and shall be canceled
immediately after issuance, and the other of which
shall represent the other Notes previously
represented by the surrendered Global Note and shall
bear the CUSIP number of the surrendered Global Note.
In the case of any Note sold through the Offering
Agent, as agent, if the purchase price for any Note
is not timely paid to the DTC participants with
respect to such Note by the beneficial investor or
other purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
investor or other purchaser), such DTC participants
and, in turn, the related Offering Agent may enter
SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant
to Settlement Procedures F and G, respectively.
Thereafter, the Trustee will deliver the withdrawal
message and take the related actions described in the
preceding paragraph. If such failure shall have
occurred for any reason other than default by the
applicable Offering Agent to perform its obligations
hereunder or under the Distribution Agreement, the
Company will reimburse such Offering Agent on an
equitable basis for its reasonable loss of the use of
funds during the period when the funds were credited
to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note, DTC may take any
actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure
to settle with respect to a Note that was to have
been represented by a Global Note also representing
other Notes, the Trustee will provide, in accordance
with Settlement Procedure D, for the authentication
and issuance of a Global Note representing such
remaining Notes and will make appropriate entries in
its records.
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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.
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(v) Initial Interest Reset Date and
Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum Interest
Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
6. Price to public of such Certificated Note
(or whether such Note is being offered at
varying prices relating to prevailing market
prices at time of resale as determined by
the Offering Agent).
7. Trade Date.
8. Settlement Date (Original Issue Date).
9. Stated Maturity Date.
10. Redemption provisions, if any.
11. Repayment provisions, if any.
12. Default Rate, if any.
13. Net proceeds to the Company.
14. The Offering Agent's discount or commission.
15. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
16. Such other information specified with
respect to such Note (whether by Addendum or
otherwise).
B. After receiving such settlement information from the
Offering Agent, the Company will advise the Trustee
of
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the above settlement information by facsimile
transmission confirmed by telephone. The Company will
cause the Trustee to issue, authenticate and deliver
the Certificated Note.
C. The Trustee will complete the Certificated Note in
the form approved by the Company and the Offering
Agent, and will make three copies thereof (herein
called "Stub 1", "Stub 2" and "Stub 3"):
1. Certificated Note with the Offering Agent's
confirmation, if traded on a principal
basis, or the Offering Agent's customer
confirmation, if traded on an agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the Trustee will deliver
the Certificated Note and Stub 2 thereof to the
Offering Agent at the following applicable address:
if to 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 Salomon
Smith Barney Inc., to: 388 Greenwich Street, New
York, New York 10013, Attention: Martha Bailey,
telecopier: (212) 816-0949; if to UBS Warburg LLC,
to: 677 Washington Blvd., Stamford, Connecticut
06901, Attention: Joseph Moore,
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telecopier: (203) 719-7139, and the Trustee will keep
Stub 1. The Offering Agent will acknowledge receipt
of the Certificated Note through a broker's receipt
and will keep Stub 2. Delivery of the Certificated
Note will be made only against such acknowledgment of
receipt. Upon determination that the Certificated
Note has been authorized, delivered and completed as
aforementioned, the Offering Agent will wire the net
proceeds of the Certificated Note after deduction of
its applicable commission to the Company pursuant to
standard wire instructions given by the Company.
E. In the case of a Certificated Note sold through the
Offering Agent, as agent, the Offering Agent will
deliver such Certificated Note (with the
confirmation) to the purchaser against payment in
immediately available funds.
F. The Trustee will send Stub 3 to the Company.
Settlement
Procedures
Timetable: For offers to purchase Certificated Notes 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
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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 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.
Remarketing Procedures: The Trustee will keep a record of the Remarketing
Agent with respect to each Remarketed Note.
Unless the context otherwise requires, references
herein to "interest rate" include the Spread (if any)
and Spread Multiplier (if any), in the case of
Remarketed Notes being remarketed at a floating
interest rate.
In connection with any Remarketed Note that is being
remarketed into a Short Term Rate Period on the next
Interest Rate Adjustment Date for such Remarketed
Note, by 12:00 p.m., New York City time, on such
Interest Rate Adjustment Date, the applicable
Remarketing Agent will determine the interest rate
for such Remarketed Note to the nearest one
thousandth (0.001) of one percent per annum for the
next Interest Rate Period; provided that, in the
event that the Remarketing Agent is unable to
remarket such Note by 11:00 a.m., New York City time,
it shall so notify the Company and, between 11:00
a.m., New York City time, and 12:00 p.m., New York
City time, the Remarketing Agent shall use its
reasonable efforts to determine the interest rate for
any Remarketed Notes not successfully remarketed as
of 11:00 a.m., New York City time.
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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
Remarketings: Remarketing Settlement Procedures for each 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
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principal amount of tendered Remarketed
Notes that such Remarketing Agent was able
to remarket, at a price equal to 100% of the
principal amount thereof and (v) such other
information as is contemplated by Section
4(e) of the Remarketing Agreement and also
such information as the Trustee may require
for settlement purposes.
C. Immediately after receiving notice from the
Remarketing Agent as provided in B above,
and not later than 1:30 p.m., New York City
time, the Trustee will assign a CUSIP number
to the Remarketed Note (which CUSIP number
assigned to each Remarketed Note shall
consist of the base issuer number and three
additional positions to form a CUSIP number
unique to that remarketing) after being
notified by the Remarketing Agent as
provided in Remarketing Settlement Procedure
B above and notify the Remarketing Agent in
writing.
D. Immediately after assigning the CUSIP number
as provided in C above and not later than
1:30 p.m., New York City time, the Trustee
will communicate to DTC and the Remarketing
Agent through DTC's Participant Terminal
System same-day settlement issuance
instructions specifying the following
settlement information:
1. The information set forth in the
Remarketing Settlement Procedure
B(i) and the principal amount of
the Remarketed Note.
2. Identification numbers of the
participant accounts maintained by
DTC on behalf of the Remarketing
Agent and the Trustee.
3. Next Interest Payment Date for such
Remarketed Note, number of days by
which such date succeeds the
related record date for DTC
purposes and, if then calculable,
the amount of interest payable on
such Interest Payment Date.
4. CUSIP number of the Remarketed
Note.
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5. Such other information as DTC may
require in accordance with its
procedures as in effect from time
to time in order to enter SDFS
deliver orders through DTC's
Participant Terminal System (i)
debiting such Note to the Trustee's
participant account and crediting
such Remarketed Note to the
participant account of the
Remarketing Agent (for crediting to
the account of the purchaser)
maintained by DTC, (ii) debiting
the settlement account of the
Remarketing Agent's participant and
crediting the settlement account of
the Trustee and (iii) debiting the
settlement account of the Trustee
and crediting the settlement
account of the Beneficial Owner
maintained by DTC, in an amount
equal to 100% of the principal
amount of such Remarketed Note.
E. The Trustee will make the appropriate
computer entries of the Remarketed Note to
reflect the results of the remarketing of
such Remarketed Note. The Trustee will
preserve for record-keeping purposes copies
of the information provided by the
Remarketing Agent as described above or by
the Company in any Conversion Notice or
Floating Interest Rate Notice and make such
copies available to the Company and the
Remarketing Agent upon request.
F. Each purchaser of Remarketed Notes in a
remarketing must give instructions to its
DTC Participant to pay the purchase price
therefor in same day funds to the applicable
Remarketing Agent (or to the Trustee)
against delivery of the principal amount of
such Remarketed Notes by book entry through
DTC by 3:00 p.m., New York City time, on the
Interest Adjustment Date. The Remarketing
Agent will make or use its reasonable
efforts to cause to be made payment of such
amount to the Trustee by book-entry through
DTC to facilitate settlement as described in
G below.
G. The Trustee will make payment by book-entry
settlement with DTC to enable DTC to make
payment to the DTC Participant of each
tendering Beneficial Owner of Remarketed
Notes subject to a remarketing, by book
entry through DTC by the close of business
on the Interest Rate Adjustment Date against
delivery
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through DTC of such Beneficial Owner's
tendered Remarketed Notes, of: (i) the
purchase price for such tendered Notes that
have been sold in the remarketing, and (ii)
if any such Notes were subject to purchase
as described under "Failed Remarketings"
below, the purchase price of such Remarketed
Notes plus accrued interest, if any, to such
date.
Interest payable on any Remarketed Note on any
Interest Rate Adjustment Date will be paid in
accordance with the procedures set forth in Part V
below.
The Remarketing Agents may, in accordance with the
Remarketed Notes, modify the settlement and
remarketing procedures set forth above in order to
facilitate the settlement and remarketing process.
Not later than the Business Day following the
Interest Rate Adjustment Date, the Trustee shall
confirm to DTC the interest rate for the following
Interest Rate Period.
Failed Remarketings: By 12:15 p.m., New York City time, on any Interest
Rate Adjustment Date, the applicable Remarketing
Agent shall notify the Company and the Trustee in
writing (which includes facsimile or appropriate
electronic media), of the principal amount of
Remarketed Notes that such Remarketing Agent was
unable to remarket at a price equal to 100% of the
principal amount thereof plus accrued interest, if
any, on such date. Such notice will constitute a
demand on the Company to purchase such unremarketed
Remarketed Notes at an aggregate purchase price equal
to 100% of the principal amount thereof plus accrued
and unpaid interest, if any.
The Company will deposit same-day funds with the
Trustee by 3:00 p.m., New York City time, on such
Interest Rate Adjustment Date, in an amount equal to
the principal amount of such unremarketed Remarketed
Notes plus accrued and unpaid interest, if any.
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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 to Floating
Interest Rates: Unless otherwise provided in the applicable 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
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also state that the Beneficial Owners of each such
Remarketed Note will be deemed to have tendered each
such Remarketed Note as of the Conversion Date and
will not be entitled to further accrual of interest
on each such Remarketed Note after such date.
Each Floating Interest Rate Notice must also state
whether the floating interest rate is a "Regular
Floating Rate," a "Floating Rate/Fixed Rate" or an
"Inverse Floating Rate," the Fixed Rate Commencement
Date, if applicable, the Fixed Interest Rate, if
applicable, the Interest Rate Basis, the Initial
Interest Rate, if any, the Initial Interest Reset
Date, the Interest Reset Period and Dates, the
Interest Payment Period and Dates, the Index Maturity
and the Maximum Interest Rate and/or the Minimum
Interest Rate, if any. If one or more of the
applicable Interest Rate Basis is LIBOR or the CMT
Rate, the Floating Interest Rate Notice will also
specify the Index Currency and Designated LIBOR Page
or the Designated CMT Maturity Index and Designated
CMT Telerate Page, respectively.
Redemption: The Notes will be subject to redemption by the
Company in accordance with the terms of the Notes.
Terms of redemption, if any, during the Initial
Interest Rate Period for any Remarketed Note will be
fixed at the time of sale of such Remarketed Note and
set forth in the applicable Pricing Supplement.
Repayment: The Notes will be subject to repayment by the Company
at the option of the holders thereof in accordance
with the terms of the Notes. In the case of
Remarketed Notes, terms of repayment, if any, during
the Initial Interest Rate Period for any Note will be
fixed at the time of sale of such Remarketed Note and
set forth in the applicable Pricing Supplement.
Record Dates: Unless otherwise provided in the applicable Pricing
Supplement, the "Regular Record Date" for a Fixed
Rate Note or Floating Rate Note shall be the date 15
calendar days (whether or not a Business Day)
preceding the applicable Interest Payment Date.
In the case of Remarketed Notes, for the Initial
Interest Rate Period, the Record Dates will be
specified in the applicable Pricing Supplement or, if
not so specified, the Business Day next preceding the
related Interest Payment Date. Thereafter,
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unless otherwise specified in the applicable Pricing
Supplement, the Record Date for each Interest Payment
Date will be (y) in the case of each Short Term Rate
Period, the Business Day next preceding such Interest
Payment Date, and (z) in the case of each Long Term
Rate Period, the 15th day (whether or not a Business
Day) prior to such Interest Payment Date.
Interest Payment Dates: Interest payments will be made on each Interest
Payment Date commencing with the first Interest
Payment Date following the Original Issue Date.
Unless otherwise provided in the applicable Pricing
Supplement, interest payments on Fixed Rate Notes
will be made semiannually in arrears on March 1 and
September 1 of each year and on the Maturity Date,
while interest payments on Floating Rate Notes will
be made as specified in the applicable Pricing
Supplement.
Interest on each Remarketed Note during the Initial
Interest Rate Period will be payable on the Interest
Payment Date or Dates specified in the applicable
Pricing Supplement. Thereafter, unless otherwise
specified in the applicable Pricing Supplement, the
Interest Payment Dates for such Remarketed Note will
be determined as follows: (i) interest with respect
to each Short Term Rate Period will be payable on the
Business Day next following such Short Term Rate
Period; and (ii) interest with respect to each Long
Term Rate Period will be payable no less than
semiannually on such dates as are established by the
Company and the Remarketing Agent prior to the
commencement of each Long Term Rate Period in the
case of a fixed interest rate, and as specified in
the applicable Floating Interest Rate Notice in the
case of a floating interest rate.
Payments of Principal,
Premium, if any, and Interest
on Book-Entry Notes (other
than Special Mandatory
Purchase of a Remarketed
Note): Payments of Interest Only. Promptly after each
Regular Record Date, the Trustee will deliver to the
Company a written notice specifying by CUSIP number
the amount of interest to be paid on each Book-Entry
Note on the following 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
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Company will pay to the Trustee in immediately
available funds an amount sufficient to pay the
interest then due and owing on the Book-Entry Notes,
and upon receipt of such funds from the Company, the
Trustee in turn will pay to DTC such total amount of
interest due on such Book-Entry Notes (other than on
the Maturity Date) at the times and in the manner set
forth below under "Manner of Payment".
Payments at Maturity. Not less than 15 days nor more
than 60 days prior to the Maturity Date of any
Book-Entry Note (subject to the Trustee having
received prior notice of redemption, if applicable),
the Trustee will deliver to the Company a written
list of principal, premium, if any, and interest to
be paid on each such Book-Entry Note. The Trustee and
the Company will confirm the amounts of such
principal, premium, if any, and interest payments
with respect to each such Book-Entry Note on or about
the fifth Business Day preceding the Maturity Date of
such Book-Entry Note. The Trustee and DTC will
confirm such amounts in accordance with DTC's
procedures as in effect from time to time. On or
before the Maturity Date, the Company will pay to the
Trustee in immediately available funds an amount
sufficient to make the required payments, and upon
receipt of such funds the Trustee in turn will pay to
DTC the principal amount of Book-Entry Notes,
together with premium, if any, and interest due on
the Maturity Date, at the times and in the manner set
forth below under "Manner of Payment". Promptly after
payment to DTC of the principal, premium, if any, and
interest due on the Maturity Date of such Book- Entry
Note, the Trustee will cancel such Book-Entry Note
and deliver to the Company an appropriate debit
advice. On the first Business Day of each month, the
Trustee will deliver to the Company a written
statement indicating the total principal amount of
outstanding Book-Entry Notes as of the close of
business on the immediately preceding Business Day.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Book-Entry Notes
on any Interest Payment Date or the Maturity Date, as
the case may be, shall be paid by the Company to the
Trustee in funds available for use by the Trustee no
later than 10:00 a.m., New York City time, on such
date. The Company will make such payment on such
Book-Entry Notes to an account specified by the
Trustee. Thereafter on such date, DTC will debit the
account of the Trustee and pay, in accordance with
its SDFS
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operating procedures then in effect, such amounts in
funds available for immediate use to the respective
DTC participants in whose names the beneficial
interests in such Book-Entry Notes are recorded in
the book-entry system maintained by DTC. Neither the
Company nor the Trustee shall have any responsibility
or liability for the payment by DTC of the principal
of, or premium, if any, or interest on, the
Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the DTC participant, indirect participant
in DTC or other Person responsible for forwarding
payments and materials directly to the beneficial
owner of such Book-Entry Note.
Payments of Principal,
Premium, if any, and
Interest on Certificated
Notes: Upon presentment and delivery of the Certificated
Note, the Trustee upon receipt of 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.
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Payments of Principal
and Interest (Special
Mandatory Purchase of
a Remarketed Note): Upon notice to the Company by a Remarketing Agent of
a failed remarketing of a Remarketed Note on any
Interest Rate Adjustment Date, as described in Part
II above, the Company will pay in immediately
available funds by deposit to the account of the
Trustee an amount sufficient to pay 100% of the
principal amount of such Note subject to Special
Mandatory Purchase, plus accrued and unpaid interest,
if any, and upon receipt of such funds the Trustee in
turn will pay to DTC, the principal amount of such
Remarketed Note, together with interest, if any, due
at such Interest Rate Adjustment Date, at the times
and in the manner set forth below under "Manner of
Payment". Promptly after payment to DTC of the
principal and interest, if any, due on such Interest
Rate Adjustment Date, the Company may cause the
Trustee to cancel the Remarketed Note in accordance
with the Indentures, subject to Section 309 thereof.
Manner of Payment. The total amount of any principal
and interest, if any, due on Remarketed Notes subject
to Special Mandatory Purchase on any Interest Rate
Adjustment Date shall be paid by the Company to the
Trustee in funds available for use by the Trustee no
later than 3:00 p.m., New York City time, on such
date. The Company will make such payment on such Note
to the account specified by the Trustee. Thereafter
on such date, DTC will debit the account of the
Trustee and pay, in accordance with its SDFS
operating procedures then in effect, such amounts in
funds available for immediate use to the respective
DTC participants in whose names such Remarketed Note
is recorded in the book-entry system maintained by
DTC. Neither the Company, the Trustee nor the
Remarketing Agent shall have any responsibility or
liability for the payment by DTC of the principal of,
or interest, if any, on, the Remarketed Note to such
DTC participants.
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SCHEDULE I
MATERIAL SUBSIDIARIES
Centex International, Inc. Nevada corporation
Centex Real Estate Corporation Nevada corporation
Centex Homes Nevada general partnership
Cavco Industries, LLC Delaware limited liability company
CRG Holdings, LLC Delaware limited liability company
Centex Financial Services, Inc. Nevada corporation
Centex Credit Corporation Nevada corporation
CTX Mortgage Company Nevada corporation
Centex Construction Products, Inc.* Delaware corporation
Centex Construction Group, Inc. Nevada corporation
Centex-Rooney Construction Co., Inc. Florida corporation
Centex Rodgers, Inc. Nevada corporation
Centex Construction Company, Inc. Nevada corporation
Centex Forcum Lannom, Inc. Nevada corporation
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* Centex Corporation owned 65.3% of Centex Construction Products, Inc. as of
December 31, 2000.