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EXHIBIT 4.2
CENTEX CORPORATION
Issuer
and
JPMORGAN
CHASE BANK, N.A.
(formerly The Chase Manhattan Bank)
Trustee
INDENTURE SUPPLEMENT NO. 17
Dated as of June 6, 2005
to
INDENTURE
Dated as of October 1, 1998
5.25% Senior Notes due June 15, 2015
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TABLE OF CONTENTS
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Page
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ARTICLE ONE DEFINITIONS
.......................................................................1
ARTICLE TWO TERMS AND ISSUANCE OF THE
NOTES....................................................3
Section 2.01. Issuance and
Designation.............................................3
Section 2.02. Form and Other
Terms of Notes; Incorporation of Terms................3
Section 2.03. Place and Method
of Payment..........................................3
ARTICLE THREE ADDITIONAL
COVENANTS.............................................................4
Section 3.01. Limitation on
Liens..................................................4
Section 3.02. Limitation on
Sale and Lease-Back Transactions.......................6
ARTICLE FOUR DEFEASANCE
.......................................................................6
Section 4.01. Option to Effect
Legal Defeasance or Covenant Defeasance.............6
Section 4.02. Legal
Defeasance.....................................................6
Section 4.03. Covenant
Defeasance..................................................7
Section 4.04. Conditions to
Covenant Defeasance....................................7
ARTICLE FIVE
MISCELLANEOUS.....................................................................8
Section 5.01. Ratification of
Indenture............................................8
Section
5.02.
Redemption...........................................................8
Section 5.03. Conflict with
Trust Indenture Act....................................8
Section 5.04. Effect of
Headings...................................................8
Section 5.05.
Counterparts.........................................................8
Section 5.06.
Severability.........................................................8
Section 5.07. Benefits of Indenture
Supplement.....................................8
Section 5.08. Acceptance of
Trusts.................................................9
Section 5.09. Governing
Law........................................................9
EXHIBIT A
-
Form of Note
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INDENTURE SUPPLEMENT NO. 17 ("Indenture Supplement"), dated as
of June 6, 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, The Chase Manhattan Bank,
successor to Chase Bank of Texas, 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 October 1, 1998 (the
"Indenture").
PRELIMINARY STATEMENT
Section 2.02 of the Indenture provides, among other things,
that the Company may, when authorized by
its Board of Directors, and the Trustee
may at any time and from time to time,
enter into a series supplement to the
Indenture for the purpose of authorizing
one or more Series of Senior Debt
Securities and to specify certain terms of
each such Series of Senior Debt
Securities. The Board of Directors of the
Company has duly authorized the
creation of a Series of Senior Debt
Securities to be known as the Company's
5.25% Senior Notes due 2015 (the "Notes"),
and the Company and the Trustee are
executing and delivering this Indenture
Supplement in order to provide for the
issuance of the Notes.
ARTICLE ONE
Definitions
Except to the extent such terms are otherwise defined in this
Indenture Supplement or the context clearly
requires otherwise, all terms used
in this Indenture Supplement which are
defined in the Indenture or the form of
Note attached hereto as Exhibit A, 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:
CONSOLIDATED NET TANGIBLE ASSETS:
The term "Consolidated Net Tangible Assets" shall mean the
aggregate amount of assets included on the
most recent consolidated balance
sheet of the Company and its subsidiaries,
less applicable reserves and other
properly deductible items and after
deducting therefrom (a) all current
liabilities and (b) all goodwill, trade
names, trademarks, patents, unamortized
debt discount and expense, and other like
intangibles, all in accordance with
generally accepted accounting principles
consistently applied.
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 Exchange
Act of 1934, as amended, or any successor
statute or regulation.
FUNDED INDEBTEDNESS:
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The term "Funded Indebtedness" shall mean notes, bonds,
debentures or other similar evidences of
indebtedness for money borrowed which
by their terms mature at or are extendible
or renewable at the option of the
obligor to a date more than 12 months after
the date of the creation of such
debt.
GLOBAL SECURITY:
The term "Global Security" shall mean a single Note that is
issued to evidence Notes having identical
terms and provisions, which is
delivered to the Depositary or pursuant to
instructions of the Depositary and
which shall be registered in the name of
the Depositary or its nominee.
INTEREST PAYMENT DATE:
The term "Interest Payment Date" means the Stated Maturity of
an installment of interest on the
Notes.
MATURITY DATE:
The term "Maturity Date," when used with respect to any Note,
shall mean the date on which the principal
of such Note 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 or otherwise.
NOTEHOLDER; HOLDER:
The terms "Noteholder" or "Holder" shall mean any Person in
whose name at the time a particular Note is
registered in the Senior Debt
Security Register kept for that purpose in
accordance with the terms hereof.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest payable on any
Interest Payment Date shall mean the day
which is fifteen calendar days
immediately prior to such Interest Payment
Date, whether or not such day is a
business day.
REDEMPTION DATE:
The term "Redemption Date" for a Note shall mean the date
fixed for the redemption of such Note in
accordance with the provisions of this
Indenture Supplement.
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SPECIAL RECORD DATE:
The term "Special Record Date" for the payment of any
defaulted interest means a date which is
not less than ten and not more than
fifteen calendar days immediately preceding
the Interest Payment Date of
defaulted interest on such Note established
by notice given by first class mail
by or on behalf of the Company to the
Holder of such Note not less than fifteen
calendar days prior to such Special Record
Date.
STATED MATURITY:
The term "Stated Maturity" means, when used with respect to
any Note or any installment of interest
thereon (including defaulted interest),
the date specified in such Note as the
fixed date upon which the principal of
such Note or such installment of interest
is due and payable.
ARTICLE TWO
Terms and Issuance of the Notes
Section 2.01. Issuance and Designation. A Series of Senior
Debt Securities which shall be designated
as the Company's "5.25% Senior Notes
due 2015" shall be executed, authenticated
and delivered in accordance with the
provisions of, and shall in all respects be
subject to, the terms, conditions
and covenants of, the Indenture and this
Indenture Supplement (including the
form of Note set forth in Exhibit A). The
aggregate principal amount of the
Notes which may be authenticated and
delivered under this Indenture Supplement
shall not, except as permitted by the
provisions of the Indenture, exceed
$450,000,000, provided that the Company
may, without the consent of the Holders
of the Notes, reopen this Series and issue
additional Notes under the Indenture
and this Indenture Supplement in addition
to the $450,000,000 of Notes
authorized as of the date hereof.
Section 2.02. Form and Other Terms of Notes; Incorporation of
Terms. The Notes shall be substantially in
the form attached hereto as Exhibit
A. The terms of such Notes are herein
incorporated by reference and are part of
this Indenture Supplement.
Section 2.03. Place and Method of Payment. The place of
payment in respect of the Notes will be at
the principal office or agency of the
Company in Dallas, Texas or at the office
or place of business of the Trustee or
its successor in trust under the Indenture,
which, at the date hereof, is
located at Chase Global Trust, 2001 Bryan
Street, Floor 11, Dallas, Texas 75201.
Payments in respect of principal or
premium, if any, on Notes will be made only
against surrender of such Notes at such
office. Payments of interest on each
Interest Payment Date with respect to each
Note will be made to the Person in
whose name such Note is registered at the
close of business on the Regular
Record Date immediately preceding such
Interest Payment Date by U.S. dollar
check drawn on a bank in the City of New
York or, for Holders of at least
$1,000,000 of Notes, by wire transfer to a
dollar account maintained by the
payee with a bank in the United States;
provided that a written request from
such Holder to such effect designating
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such account is received by the Trustee or
the Paying Agent no later than 30
calendar days preceding such Interest
Payment Date. Unless such designation is
revoked, any such designation made by such
Holder with respect to such Note
payable to such Holder will remain in
effect with respect to any further
interest payments with respect to such Note
payable to such Holder. The Company
will pay any administrative costs imposed
by banks in connection with making
interest payments by wire transfer.
So long as the Depositary continues to make its "Same-Day
Funds Settlement System" available to the
Company, payments due on Notes
represented by a Global Security registered
in the name of the Depositary or its
nominee will be made in immediately
available funds to the Depositary or its
nominee, as the case may be, as the
registered owner of the Global Security
representing such Notes. The Company
expects that the Depositary or its nominee,
upon receipt of any payment, will credit
immediately participants' accounts with
payments in same-day funds in amounts
proportionate to their respective
beneficial interests in such payments, as
shown on the records of the Depositary
or its nominee. The Company also expects
that payments by participants and
indirect participants to owners of
beneficial interests in such Global Security
held through such Persons will be governed
by standing instructions and
customary practices, as is now the case
with securities registered in the name
of nominees for such customers, and will be
the responsibility of such
participants and indirect participants.
ARTICLE THREE
Additional Covenants
Section 3.01. Limitation on Liens. The following provisions
shall apply to the Notes:
(a) The Company will not itself, and will not permit any of
its subsidiaries (other than Centex Financial Services, Inc. and
its
subsidiaries) to, issue, assume or guarantee any indebtedness
for
borrowed money ("Indebtedness") if such borrowed money is secured
by a
mortgage, pledge, security interest, lien or other encumbrance
(any
such mortgage, pledge, security interest, lien or other
encumbrance
being hereinafter in this Section 3.01 referred to as a "Lien") on
or
with respect to any of the properties or assets of the Company or
any
such subsidiary or on any shares of capital stock or other
equity
interests of any subsidiary that owns properties or assets (other
than
Centex Financial Services, Inc. and its subsidiaries), whether, in
each
case, owned at the date of this Indenture Supplement or
thereafter
acquired, unless the
Company makes effective provision whereby the
Notes are secured by such Lien equally and ratably with any and
all
other borrowed money thereby secured; provided, however, that
the
foregoing restrictions shall not be applicable to:
(i) any Lien existing on any of the Company's
properties or assets or shares of capital stock or other
equity interests at the date of this Indenture Supplement;
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(ii) any Lien created by a subsidiary of the Company
in favor of the Company or any wholly-owned subsidiary;
(iii) any Lien on any property or asset of any
corporation or other entity (or on any accession or
improvement to such property or asset or any proceeds thereof)
existing at the time such corporation or other entity becomes
a subsidiary of the Company or is merged or consolidated with
or into the Company or any of its subsidiaries;
(iv) any Lien on any property or asset existing at
the time of acquisition thereof (or on any accession or
improvement to such property or asset or any proceeds thereof)
by the Company or any of its subsidiaries;
(v) any Lien on any property or asset (or on any
accession or improvement to such property or asset or any
proceeds thereof) securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of
acquiring such property or asset or the making of any
improvement thereof; provided that such Lien attaches to such
property or asset concurrently with or within 180 days after
the acquisition thereof or the making of such improvement;
(vi) any Lien incurred in connection with pollution
control, industrial revenue or any similar financing;
(vii) any Lien arising out of the refinancing,
extension, renewal or replacement of any of the Liens
permitted by any of clauses (i) through (vi) above; provided
that the principal amount of the Indebtedness secured by the
Lien being refinanced, extended, reviewed or replaced is not
increased and is not secured by any additional properties or
assets; and
(viii) any Lien imposed by law.
(b) Notwithstanding the provisions of subsection (a) of this
Section 3.01, the Company or any of its subsidiaries may issue,
assume
or guarantee Indebtedness secured by a Lien which would otherwise
be
subject to the foregoing restrictions in an aggregate amount
which,
together with all other such secured borrowings of the Company and
its
subsidiaries and the Attributable Debt (as defined below) in
respect of
Sale and Lease-Back Transactions (as defined in Section 3.02)
existing
at such time (other than Sale and Lease-Back Transactions not
subject
to the limitation contained in Section 3.02), does not at the
time
exceed twenty percent (20%) of the Consolidated Net Tangible Assets
of
the Company and its subsidiaries, as shown on the audited
consolidated
balance sheet contained in the latest annual report to stockholders
of
the Company. The term "Attributable Debt" as used in this
paragraph
shall mean, as of any particular time, the present value of the
obligation of a lessee for rental payments during the remaining
term of
any lease (including any period for which such lease has been
extended
or may, at the option of the lessor, be extended).
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Section 3.02. Limitation on Sale and Lease-Back Transactions.
The Company will not, nor will it permit
any of its subsidiaries to, enter into
any arrangement with any Person (other than
the Company) providing for the
leasing by the Company or a subsidiary of
any of its properties or assets
(except for temporary leases for a term of
not more than three (3) years and
except for sales and leases of model
homes), which property or asset has been or
is to be sold or transferred by the Company
or such subsidiary to such Person
(herein referred to as a "Sale and
Lease-Back Transaction"), unless (a) the net
proceeds to the Company or such subsidiary
from such sale or transfer equal or
exceed the fair value (as determined by the
Board of Directors, the Chairman of
the Board, the Vice Chairman, the President
or the principal financial officer
of the Company) of the property or asset so
leased, (b) the Company or such
subsidiary would be entitled to incur
Indebtedness secured by a Lien on the
property or asset to be leased pursuant to
Section 3.01, (c) the Company shall,
and in any such case the Company covenants
that it will, apply an amount equal
to the fair value (as determined by the
Board of Directors, the Chairman of the
Board, the Vice Chairman, the President or
the principal financial officer of
the Company) of the property or asset so
leased to the retirement (other than
any mandatory retirement), within 180 days
of the effective date of any such
Sale and Lease-Back Transaction, of Funded
Indebtedness of the Company, (d) such
Sale and Lease-Back Transaction relates to
a sale which occurred within 180 days
from the date of acquisition of such
property or asset by the Company or a
subsidiary or the date of the completion of
construction or commencement of full
operations on such property, whichever is
later, or (e) such transaction was
consummated prior to the date of this
Indenture Supplement.
ARTICLE FOUR
Defeasance
Section 4.01. Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at any time,
with respect to the Notes, elect to
have either Section 13.01 of the Indenture
or Section 4.03 of this Indenture
Supplement be applied to all outstanding
Notes upon compliance with the
conditions set forth in Article Thirteen of
the Indenture and below in this
Article Four.
Section 4.02. Legal Defeasance. Upon the Company's exercise
under Section 4.01 of the option applicable
to Section 13.01 of the Indenture,
the Company may terminate its obligations
under the Notes, the Indenture and
this Indenture Supplement by complying with
the terms and conditions of Section
13.01 of the Indenture; provided, however,
that the Opinion of Counsel delivered
to the Trustee will also state that either
(A) the Company has received from, or
there has been published by, the Internal
Revenue Service, a ruling or (B) since
the date hereof, there has been a change in
the applicable federal income tax
law, in either case to the effect that, and
based thereon such Opinion of
Counsel shall confirm that, the Holders of
the outstanding Notes will not
recognize income, gain or loss for federal
income tax purposes as a result of
such defeasance and will be subject to
federal income tax on the same amounts,
in the same manner and at the same times as
would have been the case if such
defeasance had not occurred.
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Section 4.03. Covenant Defeasance. Upon the Company's exercise
under Section 4.01 of the option applicable
to this Section 4.03, the Company
shall be released from its obligations
under the covenants contained in Article
Three of this Indenture Supplement with
respect to the outstanding Notes on and
after the date the conditions set forth
below are satisfied ("Covenant
Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent
or declaration or act of Holders (and
the consequences of any thereof) in
connection with such covenants, but shall
continu
