Exhibit 4.4
CENTEX CORPORATION
Issuer
and
JPMORGAN CHASE BANK,
N.A.
(formerly Chase Bank of Texas, National Association
and Texas Commerce Bank National Association)
Trustee
INDENTURE SUPPLEMENT NO.
9
Dated as of
March 31, 2005
to
INDENTURE
Dated as of
March 12, 1987
Subordinated Medium-Term
Notes, Series F
INDENTURE SUPPLEMENT NO. 9
(“Indenture Supplement”), dated as of March 31,
2005, between CENTEX CORPORATION, a Nevada corporation (together
with its successors and assigns as provided in the Indenture
referred to below, the “Company”), and JPMORGAN CHASE
BANK, N.A., a national banking association (formerly, Chase Bank of
Texas, National Association and Texas Commerce Bank National
Association) (together with its successors in trust thereunder as
provided in the Indenture referred to below, the
“Trustee”), as trustee under an Indenture dated as of
March 12, 1987 (the “Indenture”).
PRELIMINARY
STATEMENT
Section 2.02 of the Indenture
provides, among other things, that the Company may, when authorized
by its Board of Directors, and the Trustee may at any time and from
time to time, enter into a series supplement to the Indenture for
the purpose of authorizing one or more Series of Subordinated Debt
Securities and to specify certain terms of each such Series of
Subordinated Debt Securities. The Board of Directors of the Company
has duly authorized the creation of a Series of Subordinated Debt
Securities to be known as the Company’s Subordinated
Medium-Term Notes, Series F (the “Subordinated
Notes”), and the Company and the Trustee are executing and
delivering this Indenture Supplement in order to provide for the
issuance of the Subordinated Notes.
ARTICLE ONE
DEFINITIONS
Except to the extent such terms are
otherwise defined in this Indenture Supplement or the context
clearly requires otherwise, all terms used in this Indenture
Supplement which are defined in the Indenture or the form of Fixed
Rate Note or Floating Rate Note attached hereto as Exhibits
A and B , respectively, either directly or by reference
therein, shall have the meanings assigned to them therein.
As used in this Indenture Supplement,
the following terms shall have the following meanings:
AGENTS:
The term “Agents” shall
mean Banc of America Securities LLC, Calyon Securities
(USA) Inc., Citigroup Global Markets Inc., Credit Suisse First
Boston LLC, J.P. Morgan Securities Inc. and UBS Securities LLC, and
any additional agents as may be appointed from time to time by the
Company pursuant to the terms of that certain Distribution
Agreement, dated as of March 31, 2005, among the Company and
the aforementioned agents, acting as principal or agent in respect
of the issuance and sale by the Company of the Subordinated
Notes.
AMORTIZED FACE
AMOUNT:
The term “Amortized Face
Amount” of an Original Issue Discount Note, as of the date
that (i) the principal amount of such Subordinated Note is to be
repaid prior to its Stated Maturity, whether upon declaration of
acceleration, call for redemption, repayment at the option of the
Holder or otherwise, or (ii) any consent, notice, request,
direction, waiver or suit by the Noteholders shall be deemed to be
given, made or commenced under this Indenture, shall mean the
principal amount of such Subordinated Note multiplied by its Issue
Price plus the portion of the difference between the dollar amount
thus obtained and the principal amount of such Subordinated Note
that has accreted at the Yield to maturity of such Subordinated
Note (computed in accordance with generally accepted United States
bond yield computation principles) to such date, but in no event
shall the Amortized Face Amount of an Original Issue Discount Note
exceed its principal amount stated in the applicable Company
Order.
1
AMORTIZING NOTE:
The term “Amortizing
Note” shall mean a Subordinated Note for which payments of
principal of and interest on such Subordinated Note are made in
installments over the life of such Subordinated Note, and unless
otherwise specified in the applicable Company Order, payments with
respect to an Amortizing Note shall be applied first to interest
due and payable thereon and then to the reduction of the unpaid
principal amount thereof.
AUTHORIZED
AGENT:
The term “Authorized
Agent” shall mean an agent of the Company designated by an
Officers’ Certificate to give to the Trustee the information
specified in clause (a) of “Company Order” for the
issuance of a Subordinated Note.
BASIS POINT:
The term “Basis Point”
shall mean one-one hundredth of a percentage point.
CALCULATION
AGENT:
The term “Calculation
Agent” for a particular Floating Rate Note shall mean the
Trustee, unless otherwise specified in the applicable Company
Order.
CALCULATION
DATE:
The term “Calculation
Date” shall, unless otherwise specified in the applicable
Company Order, mean with regard to any particular Interest
Determination Date, the earlier of (i) the tenth calendar day
after such Interest Determination Date, or, if any such day is not
a Business Day, the next day that is a Business Day, or
(ii) the Business Day immediately preceding the applicable
Interest Payment Date or Maturity Date, as the case may be.
CD RATE:
The term “CD Rate” shall
mean, with respect to any CD Rate Interest Determination Date, the
rate on such date for negotiable United States dollar certificates
of deposit having the Index Maturity specified in the applicable
Pricing Supplement as published in H.15(519) (as hereinafter
defined) under the heading “CDs (secondary market)” or,
if not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such CD Rate Interest
Determination Date for negotiable United States dollar certificates
of deposit of the Index Maturity specified in the applicable
Pricing Supplement as published in H.15 Daily Update (as
hereinafter defined), or such other recognized electronic source
used for the purpose of displaying such rate, under the caption
“CDs (secondary market).” If such rate is not yet
published in H.15 Daily Update or another recognized electronic
source by 3:00 P.M., New York City time, on the related Calculation
Date, then the CD Rate on such CD Rate Interest Determination Date
will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of
10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable
United States dollar certificates of deposit in The City of New
York (which may include the Agents or their affiliates) selected by
the Calculation Agent for negotiable United States dollar
certificates of deposit of major United States money center banks
for negotiable certificates of deposit with a remaining maturity
closest to the Index Maturity specified in the applicable Pricing
Supplement in an amount that is representative for a single
transaction in that market at that time; provided, however, that if
the dealers so selected by the Calculation Agent are not quoting as
mentioned
2
in this sentence, the CD
Rate determined as of such CD Rate Interest Determination Date will
be the CD Rate in effect on such CD Rate Interest Determination
Date.
CD RATE INTEREST
DETERMINATION DATE:
The term “CD Rate Interest
Determination Date” shall mean the Interest Determination
Date relating to a Floating Rate Note for which the interest rate
is determined with reference to the CD Rate.
CMT RATE:
The term “CMT Rate” shall
mean, with respect to any CMT Rate Interest Determination Date, the
rate displayed on the Designated CMT Moneyline Telerate Page under
the caption “...Treasury Constant Maturities...Federal
Reserve Board Release H.15...Mondays Approximately 3:45
P.M.,” under the column for the Designated CMT Maturity Index
for (i) if the Designated CMT Moneyline Telerate Page is 7051,
the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Moneyline Telerate Page is 7052,
the weekly or monthly average, as specified in the Company Order,
for the week or the month, as applicable, ended immediately
preceding the week or the month, as applicable, in which the
related CMT Rate Interest Determination Date falls. If such rate is
no longer displayed on the relevant page or is not so displayed by
3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for such CMT Rate Interest Determination Date
will be such treasury constant maturity rate for the Designated CMT
Maturity Index as published in H.15(519). If such rate is no longer
published or is not so published by 3:00 P.M., New York City time,
on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity
rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the CMT
Rate Interest Determination Date with respect to such Interest
Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to
be comparable to the rate formerly displayed on the Designated CMT
Moneyline Telerate Page and published in H.15(519). If such
information is not so provided by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market offered rates as of approximately 3:30
P.M., New York City time, on such CMT Rate Interest Determination
Date reported, according to their written records, by three leading
primary United States government securities dealers in The City of
New York (which may include the Agents or their affiliates) (each,
a “Reference Dealer”) selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest)), for the most recently
issued direct noncallable fixed rate obligations of the United
States (“Treasury Notes”) with an original maturity of
approximately the Designated CMT Maturity Index and a remaining
term to maturity of not less than such Designated CMT Maturity
Index minus one year. If the Calculation Agent is unable to obtain
three such Treasury Note quotations, the CMT Rate on such CMT Rate
Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offered rates as of approximately 3:30
P.M., New York City time, on such CMT Rate Interest Determination
Date of three Reference Dealers in The City of New York (from five
such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original
maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity
closest to the Designated CMT Maturity Index and in an amount of at
least $100 million. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate
will be based on the arithmetic mean of the offered rates obtained
and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that
3
if fewer than three
Reference Dealers so selected by the Calculation Agent are quoting
as mentioned herein, the CMT Rate determined as of such CMT Rate
Interest Determination Date will be the CMT Rate in effect on such
CMT Rate Interest Determination Date. If two Treasury Notes with an
original maturity as described in the second preceding sentence
have remaining terms to maturity equally close to the Designated
CMT Maturity Index, the Calculation Agent will obtain quotations
for the Treasury Note with the shorter remaining term to
maturity.
CMT RATE INTEREST
DETERMINATION DATE:
The term “CMT Rate Interest
Determination Date” shall mean any Interest Determination
Date relating to a Floating Rate Note for which the interest rate
is determined with reference to the CMT Rate.
COMMERCIAL PAPER
RATE:
The term “Commercial Paper
Rate” for a particular Floating Rate Note, unless otherwise
indicated in the applicable Company Order, shall mean, with respect
to any Interest Determination Date, the Money Market Yield on such
date of the rate for commercial paper having the Index Maturity
specified in such Company Order, as such rate shall be published in
H.15(519) under the caption “Commercial Paper–
Nonfinancial” or, if not so published by 3:00 P.M., New York
City time, on the related Calculation Date, the rate on such
Commercial Paper Rate Interest Determination Date for commercial
paper having the Index Maturity specified in the applicable Company
Order as published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying such rate,
under the caption “Commercial
Paper–Nonfinancial.” If such rate is not yet published
in H.15 Daily Update or another recognized electronic source by
3:00 P.M., New York City time, on the related Calculation Date,
then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date will be calculated by the Calculation
Agent and will be the Money Market Yield of the arithmetic mean of
the offered rates at approximately 11:00 A.M., New York City
time, on such Commercial Paper Rate Interest Determination Date of
three leading dealers of commercial paper in The City of New York
(which may include the Agents or their affiliates) selected by the
Calculation Agent for commercial paper having the Index Maturity
specified in the applicable Pricing Supplement placed for
industrial issuers whose bond rating is “Aa,” or the
equivalent, from a nationally recognized statistical rating
organization; provided, however, that if the dealers so selected by
the Calculation Agent are not quoting as mentioned in this
sentence, the Commercial Paper Rate determined as of such
Commercial Paper Rate Interest Determination Date will be the
Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
COMMERCIAL PAPER RATE
INTEREST DETERMINATION DATE:
The term “Commercial Paper Rate
Interest Determination Date” shall mean any Interest
Determination Date relating to a Floating Rate Note for which the
interest rate is determined with reference to the Commercial Paper
Rate.
COMMERCIAL PAPER RATE
NOTES:
The term “Commercial Paper Rate
Notes” shall mean Floating Rate Notes which are specified in
the applicable Company Order as bearing interest at an interest
rate calculated with reference to the Commercial Paper Rate.
COMPANY ORDER:
The term “Company Order”
shall mean:
4
(a) a written order signed in
the name of the Company by the Chairman of the Board, the President
or any Vice President and by the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee, to
authenticate a Subordinated Note and to make it available for
delivery, and specifying for such Subordinated Note the following
information:
(1) the name of the Person in which a
Subordinated Note to be issued and authenticated shall be
registered;
(2) the address of such Person;
(3) the taxpayer identification
number of such Person;
(4) the principal amount of such
Subordinated Note and, if multiple Subordinated Notes are to be
issued to such Person, the denominations of such Subordinated
Notes;
(5) the Issue Price of such
Subordinated Note;
(6) the Original Issue Date of such
Subordinated Note;
(7) the date upon which such
Subordinated Note is scheduled to mature and the Final Maturity
Date;
(8) if the Subordinated Note is to be
redeemable at the option of the Company, the Initial Redemption
Date and the date or dates on which, and the price or prices at
which, such Subordinated Note is redeemable at the option of the
Company;
(9) if the Subordinated Note is to be
repayable prior to the Stated Maturity at the option of the Holder,
the date or dates on which, and the price or prices at which, such
Subordinated Note is repayable at the option of the Holder;
(10) if the Subordinated Note is a
Fixed Rate Note, the rate of interest on such Subordinated Note and
the Interest Payment Dates, if other than March 1 and
September 1, and the Record Dates, if other than
February 15 and August 15;
(11) if the Subordinated Note is an
Original Issue Discount Note, its Yield to Maturity;
(12) if such Subordinated Note is an
Amortizing Note, a table setting forth the schedule of dates and
amounts of payments of principal of and interest on such
Subordinated Note or the formula for the amortization of principal
and/or interest;
(13) if the Subordinated Note is a
Reset Note, the Optional Interest Reset Date and the formula, if
any, for resetting the interest rate of a Fixed Rate Note or the
Spread and/or Spread Multiplier of a Floating Rate Note;
(14) if the Subordinated Note is a
Floating Rate Note, its:
(A) Initial Interest Rate
(B) Interest Rate Basis or Bases (including any Designated
LIBOR Currency and Designated LIBOR Page or any Designated CMT
Maturity Index and Designated CMT Moneyline Telerate Page)
5
(C) Index Maturity
(D) Interest Determination Dates
(E) Interest Reset Period
(F) Initial Interest Reset Date
(G) Fixed Rate Commencement Date, if applicable
(H) Fixed Interest Rate, if applicable
(I) Interest Reset Dates
(J) Spread
(K) Spread Multiplier
(L) Maximum Interest Rate
(M) Minimum Interest Rate
(N) Interest Payment Dates
(O) Record Dates
(15) If such Subordinated Note is a
Floating Rate Note, whether it is a Regular Floating Rate Note or a
Floating Rate/Fixed Rate Note;
(16) whether or not such Subordinated
Note is to be issued in the form of a Global Note to the
Depositary;
(17) the name and address of the
Calculation Agent, if other than the Trustee;
(18) if other than United States
dollars or denominations of $1,000 and integral multiples thereof,
the authorized currency or denominations in which Subordinated
Notes shall be issued; and
(19) all other information necessary
for the issuance of such Subordinated Note not inconsistent with
the provisions of this Indenture; or
(b) confirmation given to the
Trustee by an officer of the Company designated by an
Officers’ Certificate, by telephone, confirmed by telex or
facsimile or similar writing, of the information given to the
Trustee by an Authorized Agent for the issuance of a Subordinated
Note, and the written order of the Company to authenticate such
Subordinated Note and to make it available for delivery.
COMPOSITE
QUOTATIONS:
The term “Composite
Quotations” shall mean the daily statistical release
“Composite 3:30 P.M. Quotations for U. S. Government
Securities” or any successor publication published by the
Federal Reserve Bank of New York.
6
CUSIP:
The term “CUSIP” shall
mean the registered trademark “Committee on Uniform
Securities Identification Procedures” or “CUSIP”
and a unique system of identification of each public issue of a
security owned by the American Bankers Association and administered
by Standard and Poor’s Corporation, as agent of the American
Bankers Association.
DEPOSITARY:
The term “Depositary”
shall mean, unless otherwise specified by the Company, The
Depository Trust Company, New York, New York, or any successor
thereto registered as a Clearing Agency under the Securities and
Exchange Act of 1934, as amended, or any successor statute or
regulation.
DESIGNATED CMT MONEYLINE
TELERATE PAGE:
The term “Designated CMT
Moneyline Telerate Page” shall mean the display on Moneyline
Telerate (or any successor service) on the page specified in the
applicable Pricing Supplement (or any other page as may replace
such page on such service) for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519) or, if no such page is
specified in the applicable Pricing Supplement, page 7052.
DESIGNATED CMT MATURITY
INDEX:
The term “Designated CMT
Maturity Index” shall mean the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or
30 years) specified in the applicable Pricing Supplement with
respect to which the CMT Rate will be calculated or, if no such
maturity is specified in the applicable Pricing Supplement,
2 years.
DESIGNATED LIBOR
CURRENCY:
The term “Designated LIBOR
Currency” shall mean the currency or composite currency
specified in the applicable Company Order as to which LIBOR shall
be calculated or, if no such currency or composite currency is
specified in the applicable Company Order, United States
dollars.
DESIGNATED LIBOR
PAGE:
The term “Designated LIBOR
Page” shall mean either (a) the display on the Reuters
Monitor Money Rates Service (or any successor service) on the page
specified in such Company Order (or any other page as may replace
such page on such service) for the purpose of displaying the London
interbank rates of major banks for the Designated LIBOR Currency
(if “LIBOR Reuters” is specified in the applicable
Company Order), or (b) the display on Moneyline Telerate (or
any successor service) on the page specified in the applicable
Company Order (or any other page as may replace such page on such
service) for the purpose of displaying the London interbank rates
of major banks for the Designated LIBOR Currency (if “LIBOR
Moneyline Telerate” is specified in the applicable Company
Order or neither “LIBOR Reuters” nor “LIBOR
Moneyline Telerate” is specified in the applicable Company
Order as the method for calculating LIBOR).
ELEVENTH DISTRICT COST
OF FUNDS RATE:
The term “Eleventh District
Cost of Funds Rate” shall mean, with respect to any Eleventh
District Cost of Funds Rate Interest Determination Date, the rate
equal to the monthly weighted average cost of
7
funds for the calendar
month immediately preceding the month in which such Eleventh
District Cost of Funds Rate Interest Determination Date falls as
set forth under the caption “11th District” on the
display on Moneyline Telerate (or any successor service) on page
7058 (“Moneyline Telerate Page 7058”) as of
11:00 A.M., San Francisco time, on such Eleventh District Cost
of Funds Rate Interest Determination Date. If such rate does not
appear on Moneyline Telerate Page 7058 on such Eleventh District
Cost of Funds Rate Interest Determination Date, then the Eleventh
District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted
average cost of funds paid by member institutions of the Eleventh
Federal Home Loan Bank District that was most recently announced
(the “Index”) by the Federal Home Loan Bank of San
Francisco (the “FHLB of San Francisco”) as such cost of
funds for the calendar month immediately preceding such Eleventh
District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to
such Eleventh District Cost of Funds Rate Interest Determination
Date for the calendar month immediately preceding such Eleventh
District Cost of Funds Rate Interest Determination Date, the
Eleventh District Cost of Funds Rate determined as of such Eleventh
District Cost of Funds Rate Interest Determination Date will be the
Eleventh District Cost of Funds Rate in effect on such Eleventh
District Cost of Funds Rate Interest Determination Date.
ELEVENTH DISTRICT COST
OF FUNDS RATE INTEREST DETERMINATION DATE:
The term “Eleventh District
Cost of Funds Rate Interest Determination Date” shall mean
any Interest Determination Date relating to a Floating Rate Note
for which the interest rate is determined with reference to the
Eleventh District Cost of Funds Rate.
FEDERAL FUNDS
RATE:
The terms “Federal Funds
Rate” shall mean, with respect to any Federal Funds Rate
Interest Determination Date, the rate on such date for United
States dollar federal funds as published in H.15(519) under the
heading “Federal Funds (Effective)”, as such rate is
displayed on Moneyline Telerate (or any successor service) on page
120 (“Moneyline Telerate Page 120”), or, if such rate
does not appear on Moneyline Telerate Page 120 or is not so
published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date for United States dollar federal funds as
published in H.15 Daily Update, or such other recognized electronic
source used for the purpose of displaying such rate, under the
caption “Federal Funds (Effective).” If such rate is
not yet published in H.15 Daily Update or another recognized
electronic source by 3:00 P.M., New York City time, on the related
Calculation Date, then the Federal Funds Rate on such Federal Funds
Rate Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the rates for
the last transaction in overnight United States dollar federal
funds arranged by three leading brokers of federal funds
transactions in The City of New York (which may include the Agents
or their affiliates) selected by the Calculation Agent prior to
9:00 A.M., New York City time, on such Federal Funds Rate Interest
Determination Date; provided, however, that if the brokers so
selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate determined as of such Federal
Funds Rate Interest Determination Date will be the Federal Funds
Rate in effect on such Federal Funds Rate Interest Determination
Date.
FEDERAL FUNDS RATE
INTEREST DETERMINATION DATE:
The term “Federal Funds Rate
Interest Determination Date” shall mean any Interest
Determination Date relating to a Floating Rate Note for which the
interest rate is determined with reference to the Federal Funds
Rate.
8
FINAL MATURITY
DATE:
The term “Final Maturity
Date” shall mean the date beyond which the Stated Maturity of
a particular Subordinated Note may not be extended at the option of
the Company.
FIXED RATE AMORTIZING
NOTE:
The term “Fixed Rate Amortizing
Note” shall mean a Fixed Rate Note which is an Amortizing
Note.
FIXED RATE NOTE:
The term “Fixed Rate
Note” shall mean a Subordinated Note which bears interest at
a fixed rate (which may be zero in the case of a Zero Coupon Note)
specified in the applicable Company Order.
FLOATING RATE AMORTIZING
NOTE:
The term “Floating Rate
Amortizing Note” shall mean a Floating Rate Note which is an
Amortizing Note.
FLOATING RATE
NOTE:
The term “Floating Rate
Note” shall mean a Subordinated Note which bears interest at
a variable rate determined by reference to an interest rate
formula, and includes a CD Rate Note, a CMT Rate Note, a Commercial
Paper Rate Note, an Eleventh District Cost of Funds Rate Note, a
Federal Funds Rate Note, a LIBOR Note, a Prime Rate Note or a
Treasury Rate Note.
GLOBAL NOTE:
The term “Global Note”
shall mean a single Subordinated Note that is issued to evidence
Subordinated Notes having identical terms and provisions, which is
delivered to the Depositary or pursuant to instructions of the
Depositary and which shall be registered in the name of the
Depositary or its nominee.
H.15(519):
The term “H.15(519)”
shall mean the weekly publication “Statistical Release
H.15(519), Selected Interest Rates” or any successor
publication published by the Board of Governors of the Federal
Reserve System.
H.15 DAILY
UPDATE:
The term “H.15 Daily
Update” shall mean the daily update of H.15(519), available
through the world-wide-web site of the Board of Governors of the
Federal Reserve System at
http://www.federalreserve.gov/releases/h15/update , or any
successor site or publication.
HIGHEST LAWFUL
RATE:
The term “Highest Lawful
Rate” shall mean at the particular time in question the
maximum rate of interest which, under applicable law, the Holders
are then permitted to charge on the Subordinated Notes. If the
maximum rate of interest which, under applicable law, the Holders
are permitted to charge on the Subordinated Notes shall change
after the date of this Indenture Supplement, the Highest Lawful
9
Rate shall be automatically
increased or decreased, as the case may be, from time to time as of
the effective time of each change in the Highest Lawful Rate
without notice to the Company. For purposes of determining the
Highest Lawful Rate under the applicable law of the State of Texas,
the applicable rate ceiling shall be (a) the weekly rate
ceiling described in and computed in accordance with the provisions
of Articles 5069.1D and 5069.1H.002, Title 79, Revised Civil
Statutes of Texas, 1925, as amended (“Art. 5069.1D”) or
(b) if the parties subsequently contract as allowed by
applicable law, the quarterly ceiling or the annualized ceiling
computed pursuant to Art. 5069.1D; provided, however, that at any
time the weekly rate ceiling, the quarterly ceiling or the
annualized ceiling shall be less than 18% per annum or more than
24% per annum, the provisions of Section 1D.009 of said Art.
5069.1D shall control for purposes of such determination, as
applicable.
INDEX MATURITY:
The term “Index Maturity”
of a particular Floating Rate Note shall mean the period to Stated
Maturity of the instrument or obligation with respect to which the
related Interest Rate Basis or Bases of such Floating Rate Note is
calculated, as specified in the applicable Company Order.
INITIAL INTEREST
RATE:
The term “Initial Interest
Rate” for a particular Floating Rate Note shall mean the
interest rate specified in the applicable Company Order as in
effect from the Original Issue Date of such Floating Rate Note to
its first Interest Reset Date.
INITIAL REDEMPTION
DATE:
The term “Initial Redemption
Date” shall mean the earliest date, if any, on which a
particular Subordinated Note shall be redeemable at the option of
the Company prior to the Stated Maturity of such Subordinated Note,
as specified in the applicable Company Order.
INTEREST ACCRUAL
PERIOD:
The term “Interest Accrual
Period” for a particular Floating Rate Note shall mean the
period from the date of issue of such Floating Rate Note, or from
an Interest Reset Date, if any, to its next subsequent Interest
Reset Date.
INTEREST DETERMINATION
DATE:
The term “Interest
Determination Date” shall mean, with respect to the CD Rate,
the CMT Rate, the Commercial Paper Rate, the Federal Funds Rate and
the Prime Rate, the second Business Day immediately preceding the
applicable Interest Reset Date; the “Interest Determination
Date” with respect to the Eleventh District Cost of Funds
Rate shall be the last working day of the month immediately
preceding the applicable Interest Reset Date on which the FHLB of
San Francisco publishes the Index; and the “Interest
Determination Date” with respect to LIBOR shall be the second
London Business Day immediately preceding the applicable Interest
Reset Date, unless the Designated LIBOR Currency is British pounds
sterling, in which case the “Interest Determination
Date” shall be the applicable Interest Reset Date. With
respect to the Treasury Rate, the “Interest Determination
Date” shall be the day in the week in which the applicable
Interest Reset Date falls on which day Treasury Bills are normally
auctioned (Treasury Bills are normally sold at an auction held on
Monday of each week, unless such Monday is a legal holiday, in
which case the auction is normally held on the immediately
succeeding Tuesday although such auction may be held on the
preceding Friday); provided, however, that if an auction is held on
the Friday of the week preceding the applicable Interest Reset
Date, the “Interest Determination Date”
10
shall be such preceding
Friday; provided, further, that if the Interest Determination Date
would otherwise fall on an Interest Reset Date, then such Interest
Reset Date shall be postponed to the next succeeding Business Day.
The “Interest Determination Date” pertaining to a
Floating Rate Note the interest rate of which is determined by
reference to two or more Interest Rate Bases shall be the most
recent Business Day which is at least two Business Days prior to
the applicable Interest Reset Date for such Floating Rate Note on
which each Interest Rate Basis is determinable. Each Interest Rate
Basis shall be determined as of such date, and the applicable
interest rate shall take effect on the applicable Interest Reset
Date.
INTEREST PAYMENT
DATE:
(a) The term “Interest
Payment Date” shall mean with respect to a Floating Rate
Note, including a Floating Rate Amortizing Note, such date or dates
as specified in the applicable Company Order, or if not so
specified, which has an Interest Reset Date reset (1) daily,
weekly or monthly: the third Wednesday of each month or the third
Wednesday of March, June, September and December of each year, as
specified in the applicable Company Order, (2) quarterly: the
third Wednesday of March, June, September and December of each
year, as specified in the applicable Company Order,
(3) semiannually: the third Wednesday of the two months of
each year, as specified in the applicable Company Order;
(4) annually: the third Wednesday of the month of each year,
as specified in the applicable Company Order, and, in each case,
the Maturity Date of such Floating Rate Note and, with respect to
defaulted interest on such Floating Rate Note, the date established
by the Company for the payment of such defaulted interest. If any
Interest Payment Date (other than at Maturity) for any Floating
Rate Note would fall on a day that is not a Business Day with
respect to such Floating Rate Note, such Interest Payment Date will
be the immediately following day that is a Business Day with
respect to such Floating Rate Note, except that, in the case of a
LIBOR Note, if such Business Day with respect to such Floating Rate
Note is in the next succeeding calendar month, such Interest
Payment Date shall be the immediately preceding London Business
Day.
(b) The term “Interest
Payment Date” shall mean with respect to a Fixed Rate Note,
including a Fixed Rate Amortizing Note, each March 1 and
September 1, or such other dates which are specified in the
applicable Company Order during the period such Fixed Rate Note is
outstanding, the Maturity Date of such Fixed Rate Note, and with
respect to defaulted interest on such Fixed Rate Note, the date
established by the Company for the payment of such defaulted
interest.
(c) Notwithstanding the
foregoing, the first Interest Payment Date for any Subordinated
Note originally issued between a Record Date and the next Interest
Payment Date shall be the Interest Payment Date following the next
succeeding Record Date.
INTEREST RATE:
(a) The term “Interest
Rate” for a particular Floating Rate Note shall mean
(1) from the date of issue of such Floating Rate Note to the
first Interest Reset Date for such Floating Rate Note, the Initial
Interest Rate, and (2) each Interest Accrual Period commencing
on or after such First Interest Reset Date, the Base Rate with
reference to the Index Maturity for such Floating Rate Note as
specified in the applicable Company Order plus or minus the Spread,
if any, multiplied by the Spread Multiplier, if any; PROVIDED that
in the event no Spread or Spread Multiplier is provided in such
Company Order, the Spread and Spread Multiplier shall be zero and
one, respectively; PROVIDED, FURTHER, in no event shall the
Interest Rate be greater than the Maximum Interest Rate, if any, or
less than the Minimum Interest Rate, if any; PROVIDED, FURTHER, the
Interest Rate in effect for the ten days immediately prior to
Maturity will be the Interest Rate in effect on the tenth day
preceding such Maturity; and PROVIDED, FURTHER, the Interest Rate
will in no event be higher than the maximum rate permitted by
11
Texas or other applicable
law, as the same may be modified by United States federal laws of
general application.
(b) The term “Interest
Rate” for a particular Fixed Rate Note shall mean the
interest rate specified in the applicable Company Order.
INTEREST RATE
BASIS:
The term “Interest Rate
Basis” shall mean with respect to (a) CD Rate Notes, the
CD Rate, (b) CMT Rate Notes, the CMT Rate, (c) Commercial
Paper Rate Notes, the Commercial Paper Rate, (d) Eleventh District
Cost of Funds Note, the Eleventh District Cost of Funds Rate,
(e) Federal Funds Rate Notes, the Federal Funds Rate,
(f) LIBOR Notes, LIBOR, (g) Prime Rate Notes, the Prime
Rate, (h) Treasury Rate Notes, the Treasury Rate, and
(i) any other Floating Rate Note, the interest rate formula
which determines the variable rate at which such Subordinated Note
bears interest.
INTEREST RESET
DATE:
The term “Interest Reset
Date” shall mean, in the case of a Floating Rate Note, such
date or dates as specified in the applicable Company Order, or if
not so specified, if such Floating Rate Note is specified in the
applicable Company Order as being reset (a) daily: each
Business Day; (b) weekly: the Wednesday of each week (with the
exception of weekly reset Treasury Rate Notes which reset the
Tuesday of each week, except as specified below); (c) monthly:
the third Wednesday of each month (with the exception of monthly
reset Floating Rate Notes as to which the Eleventh District Cost of
Funds Rate is an applicable Interest Rate Basis which will reset on
the first calendar day of the month); (d) quarterly: the third
Wednesday of March, June, September and December;
(e) semiannually: the third Wednesday of the two months
specified in the applicable Company Order; and (f) annually:
the third Wednesday of the month specified in the applicable
Company Order. If any Interest Reset Date for a Floating Rate Note
would otherwise be a day which is not a Business Day, such Interest
Reset Date shall be postponed to the next succeeding day that is a
Business Day, except that in the case of a LIBOR Note, if such
Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding London
Business Day. If, in the case of a Treasury Rate Note, an Interest
Reset Date shall fall on a day on which the Treasury auctions
Treasury Bills, then such Interest Reset Date shall instead be the
first Business Day immediately following such auction.
INTEREST RESET
PERIOD:
The term “Interest Reset
Period” shall mean for:
(a) each Floating Rate Note on
which interest is reset monthly, quarterly, semiannually or
annually, and each Fixed Rate Note, the period:
(1) beginning on and including the
Original Issue Date of such Subordinated Note or the most recent
Interest Payment Date on which interest was paid on such
Subordinated Note, and
(2) ending on but not including the
next Interest Payment Date or, for the last Interest Reset Period,
the Maturity Date, of such Subordinated Note;
(b) each Floating Rate Note on
which interest is reset daily or weekly, the period:
12
(1) beginning on and including the
Original Issue Date of such Floating Rate Note, or beginning on but
excluding the most recent Record Date through which interest was
paid on such Subordinated Note, and
(2) ending on and including the next
Record Date or, for the last Interest Reset Period, ending on but
excluding the Maturity Date, of such Subordinated Note;
PROVIDED, HOWEVER, that the
first Interest Reset Period for any Subordinated Note which has its
Original Issue date after a Record Date and prior to its next
Interest Payment Date, shall begin on and include such Original
Issue Date and (i) end on and include the next Record Date for
Floating Rate Notes on which interest is reset daily or weekly, and
(ii) end on but not include the second Interest Payment Date
after the Original Issue Date for all other Subordinated Notes.
ISSUE PRICE:
The term “Issue Price”
shall mean the price expressed as a percentage of the aggregate
principal amount of a Subordinated Note at which such Subordinated
Note is issued.
LIBOR:
The term “LIBOR,” unless
otherwise indicated in the applicable Company Order, shall mean,
with respect to any LIBOR Interest Determination Date, the rate
determined:
(i) With respect to any LIBOR
Interest Determination Date, LIBOR shall be either: (a) if
“LIBOR Moneyline Telerate” is specified in the
applicable Company Order or if neither “LIBOR Reuters”
nor “LIBOR Moneyline Telerate” is specified in the
applicable Company Order as the method for calculating LIBOR, the
rate for deposits in the Designated LIBOR Currency having the Index
Maturity specified in such Company Order, commencing on such
Interest Reset Date, that appears on the Designated LIBOR Page as
of 11:00 A.M., London time, on such LIBOR Interest
Determination Date; or (b) if “LIBOR Reuters” is
specified in the applicable Pricing Supplement, the arithmetic mean
of the offered rates (unless the Designated LIBOR Page by its terms
provides only for a single rate, in which case such single rate
shall be used) for deposits in the Designated LIBOR Currency having
the Index Maturity specified in such Pricing Supplement, commencing
on the applicable Interest Reset Date, that appear (or, if only a
single rate is required as aforesaid, appears) on the Designated
LIBOR Page as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date. If fewer than two such offered rates
so appear, or if no such rate so appears, as applicable, LIBOR on
such LIBOR Interest Determination Date shall be determined in
accordance with the provisions described in clause
(ii) below.
(ii) With respect to a LIBOR Interest
Determination Date on which fewer than two offered rates appear, or
no rate appears, as the case may be, on the Designated LIBOR Page
as specified in clause (i) above, the Calculation Agent will
request the principal London offices of each of four major
reference banks (which may include affiliates of the Agents) in the
London interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered quotation for
deposits in the Designated LIBOR Currency for the period of the
Index Maturity specified in the applicable Pricing Supplement,
commencing on the applicable Interest Reset Date, to prime banks in
the London interbank market at approximately 11:00 A.M.,
London time, on such LIBOR Interest Determination Date and in a
principal amount that is representative for a single transaction in
the Designated LIBOR Currency in such market at such time. If at
least two such quotations are so provided, then LIBOR on such LIBOR
Interest Determination
13
Date shall
be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date shall be the arithmetic mean of the rates quoted
at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by
three major banks (which may include affiliates of the Agents) in
such Principal Financial Center selected by the Calculation Agent
for loans in the Designated LIBOR Currency to leading European
banks, having the Index Maturity specified in the applicable
Company Order and in a principal amount that is representative for
a single transaction in the Designated LIBOR Currency in such
market at such time; provided, however, that if the banks so
selected by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR determined as of such LIBOR Interest
Determination Date shall be LIBOR in effect on such LIBOR Interest
Determination Date.
LIBOR INTEREST
DETERMINATION DATE:
The term “LIBOR Interest
Determination Date” shall mean any Interest Determination
Date relating to a LIBOR Note.
LIBOR NOTES:
The term “LIBOR Notes”
shall mean Floating Rate Notes which are specified in the
applicable Company Order as bearing interest at an interest rate
calculated with reference to LIBOR.
LONDON BUSINESS
DAY:
The term “London Business
Day” shall mean any day on which dealings in the Designated
LIBOR Currency are transacted in the London interbank market.
MATURITY DATE:
The term “Maturity Date,”
when used with respect to any Subordinated Note, shall mean the
date on which the principal of such Subordinated Note or an
installment of principal becomes due and payable in accordance with
its terms and the terms of this Indenture as therein or herein
provided, whether at Stated Maturity, upon declaration of
acceleration, call for redemption, repayment at the option of the
Holder or otherwise.
MAXIMUM INTEREST
RATE:
The term “Maximum Interest
Rate” shall mean the maximum rate of interest, if any, which
may be applicable to any Floating Rate Note during any Interest
Accrual Period as specified in the applicable Company Order.
MINIMUM INTEREST
RATE:
The term “Minimum Interest
Rate” shall mean the minimum rate of interest, if any, which
may be applicable to any Floating Rate Note during any Interest
Accrual Period as specified in the applicable Company Order.
MONEY MARKET
YIELD:
The term “Money Market
Yield” shall be the yield (expressed as a percentage)
calculated in accordance with the following formula:
14
Money Market Yield = [(D
x 360)/(360 - (D x M))] x 100
where “D”
refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and
“M” refers to the actual number of days in the
applicable Interest Reset Period.
NOTEHOLDER;
HOLDER:
The terms “Noteholder” or
“Holder” shall mean any Person in whose name at the
time a particular Subordinated Note is registered in the register
of the Company kept for that purpose in accordance with the terms
hereof.
OFFICERS’
CERTIFICATE:
The term “Officers’
Certificate” when used with respect to the Company, shall
mean a certificate signed by the Chairman of the Board, the
President or any Vice President and by the Secretary or an
Assistant Secretary of the Company.
OPTIONAL INTEREST RESET
DATE:
The term “Optional Interest
Reset Date” shall mean each date on which the interest rate
on a Fixed Rate Reset Note or the Spread and/or Spread Multiplier
of a Floating Rate Reset Note may be reset at the option of the
Company.
ORIGINAL ISSUE
DATE:
The term “Original Issue
Date” shall mean for a particular Subordinated Note, or
portions thereof, the date upon which it, or such portion, was
issued by the Company pursuant to this Indenture or any indenture
supplemental thereto and authenticated by the Trustee (other than
in connection with a transfer, exchange or substitution).
ORIGINAL ISSUE DISCOUNT
NOTE:
The term “Original Issue
Discount Note” shall mean (i) a Subordinated Note that
has a “stated redemption price at maturity” that
exceeds its “issue price”, each as defined for United
States federal income tax purposes, by at least 0.25% of its stated
redemption price at maturity multiplied by the number of complete
years from the Original Issue Date to the Stated Maturity for such
Subordinated Note (or in the case of a Subordinated Note that
provides for payment of any amount other than the “qualified
stated interest”, as defined for United States federal income
tax purposes, prior to maturity, the weighted average maturity of
the Subordinated Note) and (ii) any other Subordinated Note
designated by the Company in the applicable Company Order as issued
with original issue discount for United States federal income tax
purposes.
PERSON:
The term “Person” shall
mean any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
15
PRIME RATE:
The term “Prime Rate” for
a particular Floating Rate Note, unless otherwise indicated in the
applicable Company Order, shall mean, with respect to any Prime
Rate Interest Determination Date, the rate on such date as
published in H.15(519) under the caption “Bank Prime
Loan” or, if not published by 3:00 P.M., New York City time,
on the related Calculation Date, the rate on such Prime Rate
Interest Determination Date as published in H.15 Daily Update, or
such other recognized electronic source used for the purpose of
displaying such rate, under the caption “Bank Prime
Loan.” If such rate is not yet published in H.15 Daily Update
or another recognized electronic source by 3:00 P.M., New York City
time, on the related Calculation Date, then the Prime Rate shall be
the arithmetic mean of the rates of interest publicly announced by
each bank that appears on the Reuters Screen USPRIME1 Page (as
hereinafter defined) as such bank’s prime rate or base
lending rate as of 11:00 A.M., New York City time, on such
Prime Rate Interest Determination Date. If fewer than four such
rates appear on the Reuters Screen USPRIME1 Page for such Prime
Rate Interest Determination Date, then the Prime Rate shall be the
arithmetic mean of the prime rates or base lending rates quoted on
the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks (which
may include affiliates of the Agents) in The City of New York
selected by the Calculation Agent. If fewer than four such
quotations are so provided, then the Prime Rate shall be the
arithmetic mean of four prime rates quoted on the basis of the
actual number of days in the year divided by a 360-day year as of
the close of business on such Prime Rate Interest Determination
Date as furnished in The City of New York by the major money center
banks, if any, that have provided such quotations and by a
reasonable number of substitute banks or trust companies (which may
include affiliates of the Agents) to obtain four such prime rate
quotations, provided such substitute banks or trust companies are
organized and doing business under the laws of the United States,
or any State thereof, each having total equity capital of at least
$500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to
provide such rate or rates; provided, however, that if the banks or
trust companies so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Prime Rate determined as
of such Prime Rate Interest Determination Date will be the Prime
Rate in effect on such Prime Rate Interest Determination Date.
PRIME RATE
NOTES:
The term “Prime Rate
Notes” shall mean Floating Rate Notes which are specified in
the applicable Company Order as bearing interest at an interest
rate calculated with reference to the Prime Rate.
PRINCIPAL
AMOUNT:
The term “principal
amount” with respect to any Subordinated Note shall mean the
principal amount thereof set forth in the applicable Company Order;
PROVIDED that in the case of any Original Issue Discount Note, its
principal amount as of (i) any date that the principal amount
of such Subordinated Note is to be repaid prior to its Stated
Maturity, whether upon declaration of acceleration, call for
redemption, repayment at the option of the Noteholder or otherwise,
or (ii) any date that any consent, notice, request, direction,
waiver or suit by the Noteholders shall be deemed to be given, made
or commenced under this Indenture, such term shall mean the
Amortized Face Amount of such Subordinated Note as of such
date.
16
PRINCIPAL FINANCIAL
CENTER:
The term “Principal Financial
Center” shall mean the capital city of the country to which
the Designated LIBOR Currency relates, except that with respect to
United States dollars, Australian dollars, Canadian dollars, euros,
South African rand and Swiss francs, the “Principal Financial
Center” shall be The City of New York, Sydney, Toronto,
Frankfurt, Johannesburg and Zurich, respectively.
RECORD DATE:
The term “Record Date”
shall mean for the Interest Payment Date for the payment of
interest for an Interest Reset Period for a particular Subordinated
Note, unless otherwise specified in the applicable Company Order,
(a) the day which is fifteen calendar days immediately prior
to such Interest Payment Date, whether or not such day is a
Business Day, (b) the Maturity Date of such Subordinated Note,
unless such Maturity Date for a Fixed Rate Note is a March 1 or a
September 1, in which event the Record Date will be as
provided in clause (a), and (c) a date which is not less than
five Business Days immediately preceding the Interest Payment Date
of defaulted interest on such Subordinated Note established by
notice given by first-class mail by or on behalf of the Company to
the Holder of such Subordinated Note not less than fifteen calendar
days prior to such Interest Payment Date.
REDEMPTION DATE:
The term “Redemption
Date” for a Subordinated Note shall mean the date fixed for
the redemption of such Subordinated Note in accordance with the
provisions of this Indenture.
RESET NOTE:
The term “Reset Note”
shall mean a Fixed Rate Note, with respect to which the Company has
the option to reset the interest rate, and a Floating Rate Note,
with respect to which the Company has the option to reset the
Spread and/or Spread Multiplier.
REUTERS SCREEN USPRIME1
PAGE:
The term “Reuters Screen
USPRIME1” shall mean the display designated as page
“USPRIME1” on the Reuters Mo
| 
