<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 21, 1995.
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
CENTEX CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 75-0778259
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
3333 LEE PARKWAY RAYMOND G. SMERGE
DALLAS, TEXAS 75219 VICE PRESIDENT, CHIEF LEGAL OFFICER
(214) 559-6500 AND SECRETARY
(Address, including zip code, CENTEX CORPORATION
and telephone number, including 3333 LEE PARKWAY
area code, of registrant's DALLAS, TEXAS 75219
principal executive offices) (214) 559-6500
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
------------
Copy To:
DON J. MCDERMETT, JR.
THOMPSON & KNIGHT, P.C.
1700 PACIFIC AVENUE
DALLAS, TEXAS 75201
(214) 969-1700
------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this From are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [x]
------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Each Class of to be Price Per Offering Registration
Securities to be Registered Registered Unit(1) Price(1) Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities, $100,000,000 100% $100,000,000 $34,483
various series . . . . . . . . . . . aggregate
principal amount
===============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
===============================================================================
<PAGE> 2
[Form of Prospectus Supplement. A Prospectus Supplement in definitive
form reflecting the terms of each series of Senior and/or Subordinated Debt
Securities will accompany the definitive Prospectus in connection with each
such series offered and sold pursuant to the Registration Statement.]
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 199
$
CENTEX CORPORATION
[DEBT SECURITIES]
[Summary of terms of the Debt Securities to be completed at time of offering.]
[The [Debt Securities] will be issued in the form of one or more Global
Securities (the "Global Securities") registered in the name of The Depository
Trust Company (the "Depository") or its nominee. Interests in the Global
Securities will be shown on, and transfers will be effected only through,
records maintained by the Depository and its participants. Except as described
herein, [Debt Securities] in definitive form will not be issued. See
"Description of [Debt Securities]" in this Prospectus Supplement.]
------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE
ACCOMPANYING PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
------------
<TABLE>
<CAPTION>
Initial Public Underwriting Proceeds to
Offering Price(1) Discount(2) Company(3)
----------------- --------------- --------------
<S> <C> <C> <C>
Per [Debt Security] . . . . . . . . . . . . . . . . . . . % % %
Total . . . . . . . . . . . . . . . . . . . . . . . . . . $ $ $
</TABLE>
_______________
(1) Plus accrued interest, if any, from , 199 .
(2) The Company has agreed to indemnify the Underwriters against certain civil
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting" in this Prospectus Supplement.
(3) Before deducting estimated expenses of $ payable by the Company.
------------
The [Debt Securities] are offered severally by the Underwriters, as
specified herein, subject to receipt and acceptance by them and subject to
their right to reject orders in whole or in part. It is expected that the
[Debt Securities] will be [ready for delivery at the offices of
, in New York, New York,] [made through the facilities of the Depository] on or
about , 199 .
[UNDERWRITERS]
------------
THE DATE OF THIS PROSPECTUS SUPPLEMENT IS , 199 .
<PAGE> 3
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE [DEBT
SECURITIES] OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER
MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT
ANY TIME.
USE OF PROCEEDS
The net proceeds from the sale of the [Debt Securities] are estimated to
be approximately $ (after deduction of underwriting discounts and
expenses payable by the Company). Such proceeds initially will be used to
repay short-term notes payable to banks and commercial paper borrowings with a
weighted average interest rate of approximately %.
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
, 199 and as adjusted (unaudited) to give effect to the issuance of the [Debt
Securities] offered hereby and the application of the proceeds as indicated
under "Use of Proceeds".
<TABLE>
<CAPTION>
, 1995
------------------------------------------------------------
CENTEX CORPORATION CENTEX FINANCIAL
AND SUBSIDIARIES CORPORATION SERVICES
------------------- ------------------- -------------------
AS AS AS
ACTUAL ADJUSTED ACTUAL ADJUSTED ACTUAL ADJUSTED
-------- ---------- -------- ---------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Short-term debt(1)(6)(7) . . . . . . . . . . $ $ $ $ $ $
Long-term debt(2)(6) . . . . . . . . . . . .
[Debt Securities], offered hereby . . . .
Senior notes(3) . . . . . . . . . . . . .
Subordinated debentures(4) . . . . . . . .
Other indebtedness(8) . . . . . . . . . .
Total debt . . . . . . . . . . . . . .
Stockholders' Equity:
Preferred stock, undesignated par value;
authorized 5,000,000 shares; none issued
Common stock, $.25 par value; authorized
50,000,000 shares; outstanding
shares(5)
Capital in excess of par value . . . . . .
Retained earnings . . . . . . . . . . . .
Total stockholders' equity . . . . . . . .
Total debt and stockholders' equity . . $ $ $ $ $ $
========= ======== ====== ======= ======== =======
</TABLE>
_____________________________
(1) Short-term debt of $ million at , 19 included $
million in commercial paper and $ million payable to banks. The Company
borrows on a short-term basis from banks under uncommitted lines which bear
interest at prevailing money market rates. The weighted average interest rate
on such short-term debt at , 19 was %.
(2) [Description of the Company's long-term credit facilities with
banks in effect at time of offering.]
(3) In May 1991, the Company issued $100,000,000 principal amount of
its 9.05% senior notes due May 1, 1996. Such notes, which were sold at par,
are not redeemable prior to maturity. [Description of the priority of such
indebtedness compared to the offered Debt Securities and an appropriate cross
reference to the Prospectus.]
S-2
<PAGE> 4
(4) In March 1987, the Company issued $100,000,000 principal amount of
its 8.75% subordinated debentures maturing March 1, 2007. Such debentures are
not redeemable prior to maturity. The Company sold these debentures at a
discount to par to yield 8.84% over their 20-year life. The discount is being
amortized as additional interest expense based on the yield method. The
unamortized discount at , 19 of $ was offset against the
debenture balance. In June 1987, the Company issued $20,000,000 principal
amount of its 8.80% subordinated debentures maturing June 30, 2007. Such
debentures are not redeemable by the Company prior to June 30, 1997. Such
debentures are redeemable at the request of a debentureholder at any time prior
to maturity upon the occurrence of certain events related to the completion and
continued operation by the Company of a gypsum wallboard plant. Such
debentures were sold at a price of 100% of the principal amount thereof. In
June 1995, the Company issued $100,000,000 principal amount of its 7-3/8%
subordinated debentures maturing June 1, 2005. Such debentures are not
redeemable by the Company prior to maturity. The Company sold these debentures
at a discount to par to yield 7.43% over their 10-year life. The discount is
being amortized as additional interest expense based on the yield method. The
unamortized discount at , 19 of $ was offset against the
debenture balance. [Description of the priority of such indebtedness compared
to the offered Debt Securities and an appropriate cross reference to the
Prospectus.]
(5) At , 199 , the Company had shares of its common
stock reserved for issuance under its stock option plans, of which were
subject to outstanding options.
(6) At , 199 , the aggregate amount of the Company's
outstanding indebtedness that would rank [senior to] [pari passu with] the
[Debt Securities] offered hereby was approximately $ million, including
approximately $ million of indebtedness to the Company's subsidiaries. See
"Description of Debt Securities" in the accompanying Prospectus.
(7) In an effort to be more meaningful, the above table presents the
capitalization of the Company on a fully- consolidated basis (the "Centex
Corporation and Subsidiaries" column), including the consolidated debt of the
Company's financial services operations, which include [CTX Mortgage Company
("CTX"), Centex's mortgage banking subsidiary], the capitalization related to
the Company's business operations other than financial services operations (the
"Centex Corporation" column) and the capitalization related to the Company's
financial services operations (the "Financial Services" column). The Company
also utilizes this presentation in connection with the presentation of its
consolidated balance sheets.
(8) Includes $ of convertible subordinated debt due in the
year 2000.
[RATINGS
At the time of their original issuance, the [Debt Securities] will be
rated by and by . A security rating is not a
recommendation to buy, sell or hold securities and may be subject to revision or
withdrawal at any time by the assigning rating organization.]
[RECENT DEVELOPMENTS
To be completed with additional information, if necessary.]
DESCRIPTION OF [DEBT SECURITIES]
The following description of the particular terms of the [Debt
Securities] offered hereby supplements, and to the extent inconsistent
therewith replaces, the description of the general terms and provisions of the
Debt Securities set forth in the accompanying Prospectus.
GENERAL
[Terms to be completed at time of offering.]
S-3
<PAGE> 5
[GLOBAL SECURITIES
The [Debt Securities] will be issued in whole or in part in the form of
one or more Global Securities deposited with, or on behalf of, the Depository
and registered in the name of a nominee of the Depository. Except under the
limited circumstances described in the Prospectus under "Description of Debt
Securities--Global Securities," owners of beneficial interests in Global
Securities will not be entitled to physical delivery of [Debt Securities] in
certificated form. Global Securities may not be transferred except as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any nominee to a successor of the Depository or a nominee of such
successor. A further description of the Depository's procedures with respect
to Global Securities representing the [Debt Securities] is set forth in the
Prospectus under "Description of Debt Securities -- Global Securities". The
Depository has confirmed to the Company, the Underwriters and the Trustee that
it intends to follow such procedures.
The Depository has advised the Company and the Underwriters as follows:
The Depository is a limited-purpose trust company organized under the laws of
the State of New York, a member of the Federal Reserve System, a "clearing
corporation' within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended. The Depository was created to
hold securities of its participants and to facilitate the clearance and
settlement of securities transactions among its participants in such securities
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depository's participants include securities brokers and dealers (including the
Underwriters), banks, trust companies, clearing corporations and certain other
organizations, some of which (and/or their representatives) own the Depository.
Access to the Depository's book-entry system is also available to others, such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly.
Persons who are not participants may own beneficial interests in Global
Securities held by the Depository only through participants.]
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting
agreement (the "Underwriting Agreement") among the Company and the underwriters
named below (the "Underwriters"), the Company has agreed to sell to each of the
Underwriters, and each of the Underwriters, for whom [Name(s) of Managing
Underwriter(s)] are acting as representatives, has severally agreed to purchase
from the Company, the principal amount of the [Debt Securities] set forth
opposite its name below. The Underwriting Agreement provides that the
obligations of the Underwriters are subject to certain conditions precedent and
that the Underwriters will be obligated to purchase all of the [Debt
Securities] if any are purchased.
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
UNDERWRITER [DEBT SECURITIES]
<S> <C>
[Underwriters] . . . . . . . . . . . . . . . . . . . . . . $
--------------
Total . . . . . . . . . . . . . . . . . . . . . . $
==============
</TABLE>
The Underwriters propose to offer the [Debt Securities] in part directly
to the public at the initial public offering price set forth on the cover page
of this Prospectus Supplement and in part to certain securities dealers at such
price less a concession not to exceed % of the principal amount of the [Debt
Securities]. The Underwriters may allow, and such dealers may reallow, a
concession not to exceed %
S-4
<PAGE> 6
of the principal amount of the [Debt Securities] to certain brokers and
dealers. After the [Debt Securities] are released for sale to the public, the
offering price and other selling terms may from time to time be varied by the
representatives.
The [Debt Securities] are a new issue of securities with no established
trading market. No assurance can be given as to the existence or the liquidity
of any trading market for the [Debt Securities].
The Company has agreed to indemnify the several Underwriters with respect
to certain civil liabilities, including liabilities under the Securities Act of
1933, as amended.
S-5
<PAGE> 7
********************************************************************************
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
********************************************************************************
SUBJECT TO COMPLETION, DATED JULY 21, 1995
PROSPECTUS
CENTEX CORPORATION
DEBT SECURITIES
______________________________
The Company may from time to time issue and offer up to $100,000,000 (or
its equivalent in other currencies) aggregate principal amount of unsecured debt
securities (the "Debt Securities") consisting of bonds, debentures, notes and/or
other unsecured evidences of indebtedness in one or more series. The Debt
Securities may be either senior (the "Senior Debt Securities") or subordinated
(the "Subordinated Debt Securities") in priority of payment. The Debt Securities
may be offered as separate series in amounts, at prices and on terms to be
determined at the time of sale. An accompanying Prospectus Supplement will set
forth, with regard to the Debt Securities in respect of which this Prospectus is
being delivered, the terms of the Debt Securities, including, where applicable,
the specific designation, priority, aggregate principal amount, denominations,
maturity, rate (which may be fixed or variable) and time of payment of any
interest, any terms for redemption at the option of the Company or the holder,
any terms for sinking fund payments, any listing on a securities exchange and
the initial public offering price and any other terms in connection with the
offering and sale of such Debt Securities. The Senior Debt Securities, when
issued, will, except under certain circumstances, rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. The
Subordinated Debt Securities, when issued, will be unsecured and subordinated to
all present and future Senior Indebtedness (as defined herein) of the Company.
The Company may sell Debt Securities to or through underwriters, and
also may sell Debt Securities directly to other purchasers or through agents.
An accompanying Prospectus Supplement will set forth the names of any
underwriters or agents involved in the sale of the Debt Securities in respect of
which this Prospectus is being delivered, the principal amounts, if any, to be
purchased by underwriters and the compensation, if any, of such underwriters or
agents.
Because the Company conducts its business through subsidiaries, the
Company's rights and the rights of its creditors, including holders of the Debt
Securities, to participate in the assets of any subsidiary upon the latter's
liquidation or recapitalization will be subject to the prior claims of the
subsidiary's creditors, except to the extent that the Company may itself be a
creditor with recognized claims against the subsidiary. Moreover, the ability
of the Company to pay principal of and interest on the Debt Securities is, to a
large extent, dependent upon the payment to it of dividends, interest or other
amounts by subsidiaries of the Company. As of March 31, 1995, subsidiaries of
the Company had approximately $273 million principal amount of debt secured by
subsidiary assets outstanding to third party creditors, including approximately
$272 million related to the Company's mortgage banking subsidiary. Neither of
the indentures under which the Debt Securities will be issued contains any
limitation on the ability of the Company to incur additional debt or on the
ability of the Company's subsidiaries to incur additional debt to the Company or
to unaffiliated third parties. See "Description of Debt Securities" in this
Prospectus.
______________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
______________________________
The date of this Prospectus is , 199 .
<PAGE> 8
AVAILABLE INFORMATION
Centex Corporation, a Nevada corporation (which, together with its
subsidiaries consolidated for financial reporting purposes, is herein and in
the Prospectus Supplement referred to as "Centex" or the "Company," unless
otherwise specified herein or the context requires otherwise), is subject to
the informational requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other information may
be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices at Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and at 7 World
Trade Center, Suite 1300, New York, New York 10048. Copies of such materials
can be obtained by mail at prescribed rates from the Public Reference Branch of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. In addition,
such material may also be inspected and copied at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended, with
respect to the Debt Securities offered hereby. This Prospectus and the
Prospectus Supplement, which form a part of the Registration Statement, do not
contain all the information set forth in the Registration Statement, certain
parts of which have been omitted in accordance with the rules and regulations
of the Commission. For further information, reference is hereby made to the
Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-6776)
pursuant to the Exchange Act are incorporated herein by reference:
1. The Joint Annual Report on Form 10-K of the Company and 3333
Holding Corporation and Centex Development Company, L.P. for
the fiscal year ended March 31, 1995, as amended by Amendment
No. 1 thereto; and
2. All other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of
the offering of the Debt Securities offered hereby.
Any statement contained herein or in a document or information
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus and the Prospectus
Supplement to the extent that a statement contained herein or in any
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus or the Prospectus
Supplement.
The Company will provide without charge to each person to whom this
Prospectus and the Prospectus Supplement have been delivered, upon the request
of any such person, a copy of any and all of the documents which have been or
may be incorporated by reference in this Prospectus and the Prospectus
Supplement, other than exhibits to such information (unless such exhibits are
specifically incorporated by reference into such documents). Requests should
be directed to Raymond G. Smerge, Vice President, Chief Legal Officer and
Secretary, Centex Corporation, 3333 Lee Parkway, Dallas, Texas 75219, telephone
(214) 559-6500.
2
<PAGE> 9
THE COMPANY
Centex Corporation, through its subsidiaries, currently operates in
three business segments: Home Building, Financial Services and Contracting and
Construction Services. Home building operations primarily involve the
construction and sale of residential housing, including the purchase and
development of land. The Company also offers mortgage and other financial
services to its home buyers and others. Contracting and construction services
activities involve the construction of multi-purpose buildings and facilities
for both private and government interests, including hospitals, hotels,
museums, libraries, airport terminals, condominiums and educational facilities.
In April 1994, the Company's construction products subsidiary, Centex
Construction Products, Inc. ("CXP"), completed an initial public offering of
51% of its common stock; Centex Corporation still retains 49% of CXP's common
stock. CXP's operations include the production, distribution and sale of
cement, aggregates, readymix concrete and gypsum wallboard. The Company also
was engaged in the savings and loan business until this operation was sold in
December 1994. See "Business".
The address of the Company's principal executive office is 3333 Lee
Parkway, Dallas, Texas 75219, and its telephone number is (214) 559-6500.
USE OF PROCEEDS
Except as otherwise provided in the related Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be added to the general
funds of the Company, and substantially all of the proceeds initially will be
used to repay short-term notes payable to banks and commercial paper
borrowings.
RATIO OF EARNINGS TO FIXED CHARGES(1)
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS ENDED MARCH 31,
---------------------------------------------------------
1995 1994 1993 1992 1991
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Company (excluding mortgage banking and savings
and loan operations)(2) . . . . . . . . . . . 4.57X 2.80X 2.60X 1.93X 2.52X
Total enterprise(3) . . . . . . . . . . . . . . 3.23X 2.77X 2.27X 1.59X 1.55X
</TABLE>
_________________
(1) For purposes of calculating this ratio, fixed charges consist of
interest costs (interest expense plus capitalized interest), one-third of
estimated rent expenses (as representative of the interest portion of rentals)
and amortization of debt expense, and earnings consist of net earnings before
income taxes, extraordinary items and fixed charges.
(2) See footnote (1) to "Summary of Selected Financial Data" and
"Business--Home Building" and "Business--Financial Services".
(3) The ratio of earnings to fixed charges on a total enterprise basis,
pursuant to the rules and regulations promulgated by the Commission, includes
the earnings and fixed charges of the Company's mortgage banking subsidiaries
and discontinued savings and loan operations, which are consolidated for
financial reporting purposes in accordance with generally accepted accounting
principles. See "Business--Home Building" and "Business--Financial Services".
3
<PAGE> 10
SUMMARY OF SELECTED FINANCIAL DATA
The following is a summary of certain selected financial data related to
the Company for each of the five years in the period ended March 31, 1995,
which is derived from the consolidated financial statements of the Company
audited by Arthur Andersen LLP, independent public accountants. The March 31,
1995 and 1994 consolidated balance sheets and the related consolidated
statements of earnings, stockholders' equity and cash flows for each of the
three years in the period ended March 31, 1995 incorporated by reference in the
Joint Annual Report on Form 10-K, as amended, of the Company and 3333 Holding
Corporation and Centex Development Company, L.P. for such year are incorporated
by reference herein. The following summary is qualified in its entirety by
such financial statements and the notes thereto.
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS ENDED MARCH 31,
---------------------------------------------------------------
1995 1994 1993 1992 1991
----------- --------- -------- --------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Revenues . . . . . . . . . . . . . . $3,277,504 $3,039,709 $2,363,325 $2,028,646 $2,089,110
Net earnings (1) . . . . . . . . . . $ 92,248 $ 85,162 $ 61,038 $ 34,557 $ 43,605
Total assets . . . . . . . . . . . . $2,049,698 $2,580,356 $2,272,093 $2,347,452 $2,037,486
Total long-term debt,
including debentures (2) . . . . . . $ 222,530 $ 222,832 $ 223,988 $ 232,294 $ 137,235
Total debt (2) . . . . . . . . . . . $ 427,381 $ 429,470 $ 368,988 $ 298,508 $ 267,946
Deferred income taxes (2) . . . . . . $ 27,795 $ 35,088 $ 55,722 $ 56,627 $ 80,205
Stockholders' equity . . . . . . . . $ 668,227 $ 668,659 $ 578,415 $ 518,494 $ 483,677
Total debt as a percent of total
capitalization (total debt, deferred
income taxes, negative goodwill and
stockholders' equity) (2) 38.0% 37.1% 35.8% 33.0% 30.9%
</TABLE>
_________________
(1) Net earnings for the fiscal year ended March 31, 1995 include a
nonrecurring gain of $37.5 million realized in connection with an initial
public offering of 51% of CXP's common stock. See "Business--Construction
Products" herein.
(2) Excludes debt and deferred income taxes of the mortgage banking
subsidiaries and discontinued savings and loan operations. Reference is made
to Note 7 under "Capitalization" in the accompanying Prospectus Supplement and
to the consolidated balance sheet and Note (A) to the Company's Consolidated
Financial Statements incorporated by reference in the Joint Annual Report on
Form 10-K, as amended, of Centex and 3333 Holding Corporation and Centex
Development Company, L.P., which Annual Report on Form 10-K, as amended, is
incorporated herein by reference.
BUSINESS
GENERAL
Since its founding in 1950 as a Dallas, Texas-based residential and
commercial construction company, Centex has evolved into a multi-industry
company. Centex currently operates in three business segments: Home Building,
Financial Services and Contracting and Construction Services. Centex also has
a 49% interest in Centex Construction Products, Inc., a NYSE-listed company in
the construction products business.
4
<PAGE> 11
Centex expanded into the real estate development business in fiscal year
1988 by establishing Centex Development Company, L.P., an independent, publicly
held master limited partnership ("CDC"). Reference is made to Part B of the
Joint Annual Report on Form 10-K, as amended, of Centex Corporation and 3333
Holding Corporation and Centex Development Company, L.P., incorporated herein
by reference, for a discussion of the business of CDC.
Unless the context requires otherwise, references herein to "Centex" or
the "Company" shall mean Centex Corporation and its subsidiaries.
HOME BUILDING
The Company's Home Building operations primarily involve the construction
and sale of residential housing, including the purchase and development of
land. The Company's Home Building operations have ranked, by the number of
units produced in a calendar year, as the largest U.S. builder of single-family
homes since 1989. Centex is also the only company to rank among Professional
Builder's top 10 home builders for each of the past 26 years. Centex sells to
both first time and move-up buyers. Approximately 95% of the houses Centex
sells are single-family detached homes and the remainder are townhomes and
low-rise condominiums. Centex conducts its Home Building operations through
its wholly- owned subsidiary, Centex Real Estate Corporation, which does
business under the name Centex Homes ("Centex Homes").
Markets
Centex follows a strategy of reducing exposure to local market volatility
by spreading operations across geographically and economically diverse markets.
Centex presently builds in 44 market areas in 20 states and the United Kingdom.
The markets are listed below by geographic areas.
WEST California - Seattle, Washington
East Bay Area Reno, Nevada
Sacramento Portland, Oregon
Bakersfield
Riverside/Orange County/San Bernadino
Northern Los Angeles/Ventura
Central Valley (Fresno & Visalia)
San Diego
MIDWEST Chicago, Illinois Indianapolis, Indiana
Minneapolis, Minnesota Columbus, Ohio
Denver, Colorado
EAST Nashville, Tennessee Atlanta, Georgia
Virginia - North Carolina -
Northern Virginia Charlotte
Hampton Roads Raleigh/Durham
Maryland South Carolina -
East Windsor, New Jersey Charleston
Columbia
Greenville
5
<PAGE> 12
SOUTHEAST Florida -
Ft. Lauderdale Palm Beach
Jacksonville Bradenton/Sarasota
Naples/Ft. Myers Tampa
Orlando Titusville
SOUTHWEST Texas - Phoenix, Arizona
Austin Albuquerque, New Mexico
Dallas/Fort Worth (3 markets)
Houston (2 markets)
Killeen
San Antonio
In fiscal 1995, Centex closed 12,964 homes, including first time, move-up
and, in some markets, custom homes, ranging in price from approximately $65,000
to about $650,000 with the average sale price being approximately $159,200. In
the Dallas and San Antonio locations, Centex has custom home divisions which
offer higher-end homes.
Summarized below by geographic area are Centex's home closings for the
fiscal years ended March 31, 1995 and 1994, sales (orders) backlog at March 31,
1995 and 1994, and sales (orders) for the fiscal years ended March 31, 1995 and
1994.
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS
ENDED MARCH 31,
-----------------------
1995 1994
--------- ---------
<S> <C> <C>
CLOSINGS (IN UNITS):
West . . . . . . . . . . . . . . . . . . . . . . . . . . 2,454 1,973
Midwest . . . . . . . . . . . . . . . . . . . . . . . . 1,283 1,114
East . . . . . . . . . . . . . . . . . . . . . . . . . . 2,921 2,599
Southeast . . . . . . . . . . . . . . . . . . . . . . . 2,632 2,895
Southwest . . . . . . . . . . . . . . . . . . . . . . . 3,674 3,982
--------- ---------
12,964 12,563
========= =========
AVERAGE SALES PRICE (000'S) . . . . . . . . . . . . . . . $ 159 $ 147
========= =========
SALES (ORDERS) BACKLOG, AT END OF PERIOD (IN UNITS):
West . . . . . . . . . . . . . . . . . . . . . . . . . . 603 756
Midwest . . . . . . . . . . . . . . . . . . . . . . . . 442 622
East . . . . . . . . . . . . . . . . . . . . . . . . . . 918 1,279
Southeast . . . . . . . . . . . . . . . . . . . . . . . 892 1,387
Southwest . . . . . . . . . . . . . . . . . . . . . . . 1,132 1,751
--------- ---------
3,987 5,795
========= =========
</TABLE>
6
<PAGE> 13
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS
ENDED MARCH 31,
-----------------------
1995 1994
--------- ---------
<S> <C> <C>
SALES (ORDERS) (IN UNITS):
West . . . . . . . . . . . . . . . . . . . . . . . . . . 2,301 2,066
Midwest . . . . . . . . . . . . . . . . . . . . . . . . 1,103 1,275
East . . . . . . . . . . . . . . . . . . . . . . . . . . 2,560 2,686
Southeast . . . . . . . . . . . . . . . . . . . . . . . 2,137 3,022
Southwest . . . . . . . . . . . . . . . . . . . . . . . 3,055 4,158
--------- ---------
11,156 13,207
========= =========
</TABLE>
Inventory Turnover
The Company's policy has been to acquire land with the intent to
complete the sale of homes within 24-36 months from the date of acquisition.
Generally, this involves land that is properly zoned and is either ready for
development or, to a much lesser degree, already developed.
The Company has acquired a substantial amount of its finished and
partially improved lots and land under option agreements which are exercised
over specified time periods, or in certain cases, as the lots are needed. The
purchase of finished lots generally allows the Company to shorten the lead time
to commence construction and reduces the risks of unforeseen improvement costs
and volatile market conditions.
Competition and Other Factors
The home building industry is essentially a "local" business and is
highly competitive. Centex competes in each of its market areas with numerous
other home builders. The Company's Home Building operations account for less
than 2% of the total housing starts in the United States. The main competitive
factors affecting Centex's Home Building operations are location, price, cost
of providing mortgage financing for customers, construction costs, design and
quality of homes, marketing expertise, availability of land and a builder's
reputation. Management believes the Company competes effectively by
maintaining geographic diversity, being responsive to the specific demands of
each market and managing the operations at a local level.
The home building industry is cyclical and is particularly affected by
changes in local economic conditions and in long-term and short-term interest
rates and, to a lesser extent, changes in property taxes and energy costs,
federal income tax laws, federal mortgage financing programs and various
demographic factors. The political and economic environment affects both the
demand for housing constructed by the Company and the Company's cost of
financing. Unexpected climatic conditions, such as unusually heavy or
prolonged rain or snow, may affect operations in certain areas.
The housing industry is subject to extensive and complex regulations.
The Company and its subcontractors must comply with various federal, state and
local laws and regulations including zoning, building, environmental,
advertising and consumer credit rules and regulations. The Company is also
subject to other rules and regulations in connection with its manufacturing and
sales activities, including requirements as to building materials to be used
and building designs. The Company's homes are inspected by local authorities.
7
<PAGE> 14
The Company's Home Building operations are subject to numerous
federal, state and local regulatory schemes concerning, among other things,
worker health and safety, zoning, building design, construction materials and
the extensive and changing federal, state and local laws, regulations and
ordinances governing the protection of the environment ("Environmental Laws"),
including the protection of endangered species. All of the foregoing
regulatory requirements are applicable to all home building companies, and to
date, compliance with the foregoing requirements has not had a material impact
on the Company. The Company believes that it is in material compliance with
all such requirements.
Centex has numerous suppliers of all the materials and services and
sources of lots and land used in home building and believes that it can deal
effectively with any problems it may experience relating to the supply of
materials and services as well as lots and land.
Vista Acquisition
In December 1994, Centex International, Inc., a wholly-owned subsidiary
of Centex Corporation, entered into an agreement with Dallas-based Vista
Properties, Inc. ("Vista") under which Centex International, Inc. would acquire
equity interests in Vista and in its affiliated partnership, Vista Partners, as
part of a proposed prepackaged bankruptcy restructuring by Vista that would
result in payments to Vista's securityholders of approximately $89.9 million.
Under this agreement, Centex would acquire majority ownership of a company with
a portfolio of properties comprising approximately 3,800 acres in seven states.
The land is zoned, planned or developed for: single- and multi-family
residential, office and industrial, and retail and commercial. The acquisition
could provide Centex with future residential sites in several of its existing
markets as well as opportunities in retail, industrial and office segments.
In June 1995, Lennar Corporation ("Lennar") made an overbid offer to
Vista to acquire the equity interests in Vista and in its affiliated
partnership, Vista Partners, that would result in payment to Vista's
securityholders of approximately $92.5 million. Centex International, Inc.
responded to Lennar's bid by negotiating and executing, on June 30, 1995, an
amended and restated securities purchase agreement with Vista which provides
for distribution of $94.5 million to Vista's securityholders, which amount
increases to $95.5 million if Vista's bankruptcy petition is filed with the
bankruptcy court by August 18, 1995. This offer would require an investment of
approximately $75 million by Centex International, Inc. On July 13, 1995,
Vista commenced the solicitation of consents of its securityholders to the
prepackaged bankruptcy plan of reorganization. The transaction is now expected
to be completed during the fall of 1995, subject to the satisfaction of the
conditions stated in the agreement, including approval from Vista's
securityholders and bankruptcy court approval. Under the agreement, Centex has
the right, at its option, to top future third-party overbids, if any.
United Kingdom Joint Venture
In February 1995, Centex announced its wholly-owned subsidiary, Centex
Homes (UK) Limited, had entered into a joint venture agreement with a
London-area home builder, The Charles Church Group Limited ("Charles Church"),
to build homes in the United Kingdom. The venture is the first entry into the
international home building marketplace for Centex Homes. Centex Homes (UK)
Limited and Charles Church each are contributing up to $3 million in cash to
the venture, with its remaining funding (up to $9 million) financed by a United
Kingdom bank, which financing is guaranteed by Centex. In addition, Centex
Homes has designated certain personnel to work with this United Kingdom
venture.
8
<PAGE> 15
The new operation, Charles Church Homes Limited, acquired its first
parcel of undeveloped land in Berkshire County, west of London. Located in
Sunningdale, the parcel consists of 2.1 acres. Homes in the 3,500-4,000 square
foot range, which will sell for approximately $750,000 each, should be ready
for occupancy late in calendar 1995. A second parcel of land has been acquired
nearby, in Wokingham, Berkshire County. The homes to be built on this site
will be 1,700 to 2,000 square feet in size, will sell for approximately
$350,000 each and should be completed early in calendar 1996. Several other
potential sites in the London area are currently being evaluated.
FINANCIAL SERVICES
Financial Services consist of mortgage banking and, until December
1994, savings and loan operations. The Company's mortgage banking activities
are conducted through Centex's wholly-owned subsidiary, CTX Mortgage Company
("CTX"), which offers mortgage origination and other related services on homes
sold by Centex Homes and by third parties. The savings and loan activities,
which were conducted through Texas Trust Savings Bank, FSB, were sold in
December 1994.
CTX Mortgage Company
CTX was created in 1973 to provide mortgage financing for homes built
by Centex Homes, Centex's home building operation. The establishment by CTX of
mortgage offices in substantially all of Centex Homes' housing markets has
enabled it to consistently provide mortgage financing for an average of 73% of
the homes built by Centex Homes ("Builder Loans") over the past five years. In
1985, CTX expanded its operations to include third-party loans ("Spot Loans")
that are not associated with the sale of homes built by Centex. At March 31,
1995, CTX had 110 offices located in 23 states. The offices vary in size
depending on volume in each locality.
During the 1995 fiscal year, due to the increase in mortgage rates and
the related decline in refinancings, CTX downsized its operations. The
division's operating locations and personnel were reduced by approximately 40%.
CTX is updating and expanding its mortgage banking systems, including
reautomating its accounting and loan delivery functions. This process will
continue during fiscal 1996.
The unit breakdown of Builder and Spot Loans for the fiscal years ended
March 31, 1995 and 1994 are set forth in the following table:
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS
ENDED MARCH 31,
-----------------------
1995 1994
--------- ---------
<S> <C> <C>
Loan Types:
Builder . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,504 9,289
Spot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,574 49,254
--------- ---------
37,078 58,543
========= =========
Origination Volume (in billions) . . . . . . . . . . . . . . . $ 4.2 $ 6.4
Percent of Centex Closings Financed . . . . . . . . . . . . . . 66% 74%
</TABLE>
9
<PAGE> 16
CTX provides mortgage origination and other mortgage related services for
Federal Housing Administration ("FHA"), Veterans Administration ("VA") and
conventional loans on homes built and sold by the Company or by others. The
Company's mortgage loans are first-lien mortgages secured by 1-4 family
residences. A majority of the conventional loans are conforming loans which
qualify for inclusion in mortgage loan pools that underlie mortgage backed
securities sponsored by the Federal National Mortgage Association ("FNMA") or
the Federal Home Loan Mortgage Corporation ("FHLMC"). The remainder of the
conventional loans are pre-approved and individually underwritten by private
investors who purchase such loans on a whole-loan basis for their investment
portfolios.
The principal sources of income from CTX's mortgage banking business are:
loan origination fees; revenues from sale of servicing rights; positive carry
(discussed below); and marketing gains and losses. Generally, CTX sells its
right to service the mortgage loans to various loan servicing companies and
therefore retains no mortgage servicing rights. Accordingly, CTX avoids the
risk of early payoffs and foreclosures. CTX enters into various financial
agreements, in the normal course of business, in order to manage the exposure
to changing interest rates as a result of having issued loan commitments to its
customers at a specified price and period and committing to sell mortgage loans
to various investors. By immediately selling the mortgage loans for future
delivery, substantially all interest rate risk is removed by the time of
closing.
CTX borrows money at short-term rates to fund its mortgage loans. During
the customary 30- to 60-day period between closing of a mortgage loan and
delivery of such loan to the purchaser, CTX earns the interest accrued on the
mortgage loan, which is normally a higher interest rate than the rate paid on
the short-term loans used to fund the mortgage loan during this 30- to 60-day
holding period. This positive spread between the long-term interest rate
earned and the short-term interest rate paid is referred to as "positive
carry," and generally represents a major source of income.
Competition and Other Factors
The mortgage banking industry in the United States is highly competitive.
CTX competes with other mortgage banking companies as well as financial
institutions to supply mortgage financing at attractive rates to purchasers of
Centex homes as well as to the general public. Mortgage banking results in
fiscal 1995 were negatively impacted by an increasingly competitive
environment. Rapidly rising interest rates commencing in February 1994
virtually stopped refinancing activity and caused consumers to shift from more
profitable fixed-rate mortgages to lower-margin adjustable rate products.
CTX is subject to the rules and regulations of, and examinations by,
FNMA, FHLMC, the Department of Veterans' Affairs ("VA"), the Federal Housing
Administration ("FHA"), the Government National Mortgage Association ("GNMA")
and state regulatory authorities with respect to originating, processing,
underwriting, making, selling, securitizing and servicing residential mortgage
loans. In addition, there are other federal and state statutes and regulations
affecting such activities. These rules and regulations, among other things,
impose licensing obligations on CTX, establish eligibility criteria for
mortgage loans, provide for inspection and appraisals of properties, regulate
payment features and, in some cases, fix maximum interest rates, fees and loan
amounts. CTX is required to maintain specified net worth levels by, and submit
annual audited financial statements to, FHA, VA, FNMA, FHLMC and GNMA and
certain state regulators. CTX's affairs are also subject to examination by the
Federal Housing Commissioner at all times to assure compliance with FHA
regulations, policies and procedures. Among other federal and state consumer
credit laws, mortgage origination and servicing activities are subject to the
Equal Credit Opportunity Act, the Federal Truth-In-Lending Act, the Real Estate
Settlement
10
<PAGE> 17
Procedures Act ("RESPA") and the regulations promulgated under such statutes,
which prohibit discrimination and unlawful kickbacks and referral fees and
require the disclosure of certain information to borrowers concerning credit
and settlement costs. Many of these regulatory requirements are designed to
protect the interest of consumers, while others protect the owners or insurers
of mortgage loans. Failure to comply with these requirements can lead to loss
of approved status, demands for indemnification or loan repurchases from
investors, class action lawsuits by borrowers, administrative enforcement
actions and, in some cases, rescission or voiding of the mortgage loan by the
mortgagor.
Other financial-related services provided by CTX affiliates include
acting as an agent for the issuance of homeowners' insurance policies, title
insurance policies and escrow services. CTX Insurance Agency provides hazard
insurance to home buyers in Texas and Florida through third-party insurance
companies. During fiscal 1994, CTX opened its first commercial loan operation.
In fiscal 1995, CTX entered into a joint venture agreement with another home
builder to provide mortgage origination for homes built by this home builder.
In addition, during fiscal 1995, an affiliate of CTX entered the second lien
market whereby this CTX affiliate will originate second mortgages for home
improvements and home equity lines of credit. The affiliate utilizes CTX's
branch network and telemarketing to solicit potential customers.
Savings and Loan
In December 1988, Centex purchased certain assets and assumed certain
liabilities of four Texas savings and loan associations under the Federal
Savings and Loan Insurance Corporation's assisted transactions process commonly
known as the "Southwest Plan". The acquisition was made by Texas Trust Savings
Bank, FSB ("Texas Trust"), a federal stock savings bank and an indirect
wholly-owned subsidiary of Centex. The acquisition was made pursuant to
acquisition agreements and an assistance agreement (the "Assistance Agreement")
with the Federal Savings and Loan Insurance Corporation (the "FSLIC").
During December 1994, Texas Trust negotiated an early termination of the
Assistance Agreement with the Federal Deposit Insurance Corporation (as
successor to the FSLIC). On December 30, 1994 Texas Trust's eight branch
facilities were sold to a financial institution and all deposit liabilities
were assumed by the purchaser. On the same day, immediately following the
branch sale, Texas Trust was dissolved, thereby completing Centex's exit from
the savings and loan industry.
CONTRACTING AND CONSTRUCTION SERVICES
Centex's contracting and construction services work is performed
nationwide. As a group, Centex's Contracting and Construction Services
subsidiaries rank as one of the largest building contractors in the country as
well as one of the largest U.S.-owned construction groups. The Construction
Group is made up of seven firms with various geographic locations and project
niches. The overall group is heavily weighted towards health care facility
construction which represents nearly 40% of its mix. New contracts for fiscal
1995 totaled $1.15 billion versus $1.03 billion for fiscal 1994. The backlog
of uncompleted contracts at March 31, 1995 was $1.33 billion, compared to $1.24
billion at March 31, 1994. The group's principal subsidiaries are as follows:
11
<PAGE> 18
CENTEX BATESON CONSTRUCTION COMPANY, INC. - This Dallas-based
contractor (acquired in 1966) has become one of the nation's larger
general contractors specializing in government and competitively-bid
jobs. Its projects are nationwide.
CENTEX-SIMPSON CONSTRUCTION COMPANY - This contractor (organized in
1966) is based in the Washington D. C. area and is engaged primarily in
competitively-bid work for the public sector.
CENTEX-ROONEY CONSTRUCTION COMPANY, INC. - This Ft. Lauderdale-based
subsidiary (acquired in 1978) is one of the largest general contractors
in the state of Florida. It operates primarily in Florida and handles
predominantly negotiated work for private owners.
CENTEX GREAT SOUTHWEST CORPORATION - This subsidiary (acquired in 1978)
builds principally in the Tampa and Orlando areas and is a leading
builder of airport terminals.
CENTEX GOLDEN CONSTRUCTION COMPANY - This company (acquired in fiscal
1982) operates in the San Diego, Los Angeles and Northern California
markets, handling both negotiated and competitively-bid work.
CENTEX-RODGERS CONSTRUCTION COMPANY - This company (organized in 1987)
is headquartered in Nashville, Tennessee, and is active nationally in the
private medical construction services market.
CENTEX FORCUM LANNOM, INC. - This industrial contracting company
(acquired in 1990) is located in Dyersburg, Tennessee and operates in
Tennessee and surrounding states.
As a general contractor or construction manager, Centex provides the
supervisory personnel for the construction of the building or facility. In
addition, Centex may perform varying amounts of the actual construction work on
a project, but will generally hire subcontractors to perform the majority of
the work. As a result, the Company's Contracting and Construction Services
operation requires a relatively small asset base.
Construction contracts are primarily entered into under two formats:
competitively-bid and negotiated jobs. In a competitively-bid format, Centex
will bid a fixed amount for which it will agree to construct the project based
on an evaluation of detailed plans and specifications. In a negotiated job,
the contractor bids on a fixed fee over the cost of the project and, in many
instances, agrees that the final cost will not exceed a designated amount.
Such contracts may include a provision whereby the owner will pay a part of any
savings from the guaranteed amount to the contractor. The Company's highest
margins in contracting operations have usually been on competitively-bid jobs.
Currently, the margins on competitively-bid and negotiated jobs are about
equal. On average, about half of Centex's projects are competitively-bid,
public jobs and the other half are negotiated contracts with private owners.
The Company's public work for federal, state and local governments includes
hospitals, jails, airports, parking garages, office buildings, military
facilities, post offices and convention and performing arts centers. Most of
Centex's private owner contracts are for hotels, medical facilities and office
buildings, plus some shopping centers and condominiums.
Competition and Other Factors
The construction industry has become increasingly competitive, and Centex
competes with numerous other companies. With respect to competitively-bid
projects, Centex generally competes for projects
12
<PAGE> 19
throughout the United States and with local, regional and national contractors,
depending upon the nature of the project. For negotiated projects, Centex's
subsidiaries compete primarily in the general geographical area where they are
located and with other local, regional and national contractors. Centex
solicits new projects by attending project bid meetings and meeting with
builders and owners and through existing customers. Centex competes
successfully on the basis of its reputation and financial strength.
The Company's Contracting and Construction Services operations are
affected by federal, state and local laws and regulations relating to worker
health and workplace safety as well as Environmental Laws. With respect to
health and safety matters, the Company believes that appropriate precautions
are taken to protect employees and others from workplace hazards. Current
Environmental Laws may require the Company's operating subsidiaries to work in
concert with project owners to acquire the necessary permits or other
authorizations for certain activities, including the construction of projects
located in or near wetland areas. The Company's Contracting and Construction
Services operations are also affected by Environmental Laws regulating the use
and disposal of hazardous materials encountered during demolition operations.
The Company believes that the Contracting and Construction Services
group's current procedures and practices are consistent with industry standards
and that compliance by the Construction Group with the health and safety laws
and Environmental Laws does not constitute a material burden or expense for the
Company.
The Company's Contracting and Construction Services operations obtain
materials and services from numerous sources. The Company believes that its
construction companies can deal effectively with any problems they may
experience in the supply of materials and services.
CONSTRUCTION PRODUCTS
Centex, through its 49% ownership of Centex Construction Products, Inc.
("CXP"), is a producer of a variety of basic construction products used in
residential, industrial, commercial and infrastructure applications. CXP
produces and sells cement, aggregates, readymix concrete and gypsum wallboard.
CXP's operations are strategically located in various regions of the United
States, many of which offer attractive prospects for long-term growth.
In April 1994, the Company's formerly wholly-owned construction products
subsidiary, CXP, completed the sale of 11,730,000 shares, or 51%, of its common
stock through an initial public offering. Including dividend and other
payments, Centex received $186.5 million from the transaction and used the
funds to reduce its short-term debt. Centex retains ownership of 49% of CXP's
stock. The Company believes that, as a separate public entity, CXP will be
better positioned to expand its existing operations, take advantage of
acquisition opportunities and otherwise implement its business strategy based
on considerations directly relevant to a construction products enterprise.
LEGAL PROCEEDINGS
Management believes that no litigation in which the Company or any
subsidiary is involved, if determined adversely to Centex or any subsidiary,
would have a material adverse effect on the consolidated financial condition or
results of operations of the Company.
13
<PAGE> 20
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities offered hereby may be either senior (the "Senior Debt
Securities") or subordinated (the "Subordinated Debt Securities") in priority
of payment relative to the Company's other indebtedness. Senior Debt
Securities may be issued from time to time in one or more series under an
indenture (the "Senior Indenture"), as supplemented from time to time by an
indenture supplement with respect to each series (each, a "Senior Indenture
Supplement"), to be entered into between the Company and Texas Commerce Bank
National Association, as trustee. Subordinated Debt Securities may be issued
from time to time in one or more series under an indenture dated as of March
12, 1987 (the "Subordinated Indenture"), as supplemented from time to time by
an indenture supplement with respect to each series (each, a "Subordinated
Indenture Supplement"), between the Company and Texas Commerce Bank National
Association, as trustee. The Senior Indenture and the Subordinated Indenture
are sometimes hereinafter referred to collectively as the "Indentures," the
Senior Indenture Supplements and the Subordinated Indenture Supplements are
sometimes hereinafter referred to collectively as the "Indenture Supplements"
and Texas Commerce Bank National Association, in its capacity as trustee under
the Indentures, is hereinafter referred to as the "Trustee". See "Description
of Debt Securities--The Trustee" herein for a description of certain
consequences of Texas Commerce Bank National Association's serving as trustee
under both Indentures. As used in this section of the Prospectus, unless the
context otherwise requires, "debt securities" in lower case letters shall mean
all debt securities issued or issuable, as the case may be, under the
respective Indentures, and "Debt Securities" with initial capital letters shall
mean the Debt Securities covered by this Prospectus and any accompanying
Prospectus Supplement.
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject to, and qualified in their entirety by
reference to, all provisions of the Indentures and the related Indenture
Supplements, including the definitions of certain terms contained in the
Indentures. In particular, the term "Company" as used in the Indentures and
the related Indenture Supplements and in this section of the Prospectus means
Centex Corporation without its subsidiaries. Copies of the Indentures and any
Indenture Supplements have been or will be filed as exhibits with the
Commission. Wherever particular sections or defined terms of the Indentures
are referred to, such sections or defined terms are incorporated herein by
reference. Capitalized terms not otherwise defined herein shall have the
respective meanings given to them in the respective Indentures, as appropriate.
Article and section numbers set forth below refer to provisions of both the
Senior Indenture and the Subordinated Indenture unless otherwise noted.
The Debt Securities will be unsecured obligations of the Company. The
Debt Securities offered hereby will be limited to Debt Securities having an
aggregate principal amount not to exceed $100,000,000 or the equivalent thereof
in any currency, although the Indentures provide that additional debt
securities may be issued thereunder up to the aggregate principal amount, which
is not limited by the Indentures, authorized from time to time by the Company's
Board of Directors. The Company may from time to time, without the consent of
the holders of any of the Debt Securities offered hereby, authorize the
issuance of future series of Debt Securities in addition to those authorized as
of the date of this Prospectus or any related Prospectus Supplement. See
"Capitalization" in the accompanying Prospectus Supplement and "Description of
Debt Securities--Senior Debt Securities" and "Description of Debt
Securities--Subordinated Debt Securities" herein for information relating to
(i) $100,000,000
14
<PAGE> 21
aggregate principal amount of 9.05% senior notes due May 1, 1996 previously
issued by the Company under an indenture dated as of May 1, 1991, between the
Company and Chemical Bank, as trustee (which senior notes rank pari passu in
right of payment with any Senior Debt Securities offered hereby and senior in
right of payment with any Subordinated Debt Securities offered hereby), and
(ii) $220,000,000 aggregate principal amount of subordinated debt securities
previously issued by the Company under the Subordinated Indenture (which
subordinated debt securities rank junior in right of payment to any Senior Debt
Securities offered hereby and pari passu in right of payment with any
Subordinated Debt Securities offered hereby).
Because the Company conducts its business through subsidiaries, the
Company's rights and the rights of its creditors, including the holders of Debt
Securities offered hereby, to participate in the assets of any subsidiary upon
the latter's liquidation or recapitalization will be subject to the prior
claims of the subsidiary's creditors, except to the extent that the Company may
itself be a creditor with recognized claims against the subsidiary. Moreover,
the ability of the Company to pay principal of and interest on the Debt
Securities is, to a large extent, dependent upon the payment to it of
dividends, interest or other amounts by subsidiaries of the Company. As of
March 31, 1995, subsidiaries of the Company had approximately $273 million
principal amount of debt secured by subsidiary assets outstanding to third
party creditors, including approximately $272 million related to CTX's mortgage
operations. The Indentures under which the Debt Securities are to be issued do
not contain any limitation on the ability of the Company to incur additional
debt or on the ability of the Company's subsidiaries to incur additional debt
to the Company or to unaffiliated third parties. In addition, in connection
with managing the working capital needs of the Company and its subsidiaries,
from time to time the Company borrows funds and lends funds to its
subsidiaries. The Company's indebtedness to its subsidiaries will rank pari
passu in right of payment to Senior Debt Securities offered hereby and senior
in right of payment to Subordinated Debt Securities offered hereby because of
the inclusion of such indebtedness within the definition of the term "Senior
Indebtedness" in the Subordinated Indenture. See "Capitalization" in the
accompanying Prospectus Supplement and "Description of Debt Securities--Senior
Debt Securities" and "Description of Debt Securities--Subordinated Debt
Securities" herein.
The particular terms of each series of Debt Securities, as well as any
modification or addition to the general terms of the Debt Securities as herein
described which may be applicable to a particular series of Debt Securities,
are described in the Prospectus Supplement relating to such series of Debt
Securities and will be set forth in a filing with the Commission. Accordingly,
for a description of the terms of a particular series of Debt Securities,
reference must be made to both the Prospectus Supplement relating to such
series and the description of Debt Securities set forth in this Prospectus. In
addition to the provisions of the Debt Securities hereinafter described, the
Prospectus Supplement relating to each particular series of Debt Securities
will set forth or describe: (1) the specific title or designation, aggregate
principal amount and priority of such Debt Securities; (2) any limit on the
aggregate principal amount of such Debt Securities; (3) the percentage of their
principal amount at which such Debt Securities will be issued; (4) the date or
dates on which such Debt Securities will mature; (5) the rate or rates per
annum (which may be fixed or variable), or the method by which such rate or
rates shall be determined, at which such Debt Securities will bear interest, if
any; (6) the date or dates from which any such interest shall accrue, or the
method by which such date or dates shall be determined, and the times at which
any such interest will be payable; (7) the period or periods within which, the
price or prices at which and the terms and conditions upon which such Debt
Securities may be redeemed, in whole or in part, at the option of the Company
or the holder, if the Company or the holder is to have such an option; (8) the
obligation, if any, of the Company to redeem, repay or purchase such Debt
Securities pursuant to any sinking fund or analogous provision and the period
or periods within which, the price or prices at which and the terms and
conditions upon which such Debt Securities shall be redeemed, repaid or
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purchased, in whole or part, pursuant to such obligation; (9) the denominations
in which such Debt Securities are authorized to be issued and the currencies in
which such Debt Securities are issued or payable; (10) any additional
restrictive covenants included for the benefit of holders of such Debt
Securities, including a description of any so- called "event risk" covenants or
other Indenture provisions affording holders of such Debt Securities specific
protection in the event of a highly leveraged transaction involving the
Company, and a description of the ability of the Company's Board of Directors
to waive any such provisions (or, if there are no such covenants or provisions,
a statement to that effect); (11) any additional Event of Default with respect
to such Debt Securities; (12) whether such Debt Securities are to be issued in
whole or in part in the form of one or more global securities ("Global
Securities") and, if so, the identity of a depository for such Global Security
or Securities; and (13) any other terms of such Debt Securities not
inconsistent with the provisions of the applicable Indenture, or any provisions
expressly amending the applicable Indenture with respect to the series of Debt
Securities to which such Prospectus Supplement relates.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
principal of and premium, if any, and interest on the Debt Securities will be
payable, and the Debt Securities will be exchangeable and transfers thereof
will be registrable, at the office or agency of the Company designated for that
purpose in Dallas, Texas (initially the office of the Trustee), and any other
office or agency of the Company designated for that purpose, provided that, at
the option of the Company, payment of any interest may be made by check mailed
to the address of the person entitled thereto as it appears in the Senior or
Subordinated Debt Security Register. (Sections 2.04, 2.06 and 5.02.)
The Company will from time to time execute and deliver Debt Securities to
the Trustee for authentication and delivery, and the Trustee will authenticate
and deliver such Debt Securities upon written order of the Company. No service
charge will be made for any transfer or exchange of the Debt Securities, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Section 2.06.)
SENIOR DEBT SECURITIES
Generally speaking, Senior Debt Securities will rank equally with the
Company's other general unsecured and unsubordinated indebtedness, including
indebtedness from time to time outstanding to banks and other unaffiliated
lenders. As of March 31, 1995, the total amount of the Company's indebtedness
that would rank equally with Senior Debt Securities was approximately $534.8
million, including approximately $230.8 million of indebtedness to the
Company's subsidiaries. Senior Debt Securities offered hereby also will rank
pari passu in right of payment to the Company's $100,000,000 principal amount
of 9.05% senior notes due May 1, 1996, previously issued under an indenture
dated as of May 1, 1991, and an indenture supplement with respect thereto dated
as of May 10, 1991, both between the Company and Chemical Bank, as trustee.
All series of Senior Debt Securities of the Company issued under the Senior
Indenture will rank pari passu in right of payment with each other and with
such senior notes. See "Capitalization" in the accompanying Prospectus
Supplement.
The Senior Indenture provides that additional senior debt securities may
be issued thereunder up to the aggregate principal amount, which is not limited
by the Senior Indenture, authorized from time to time by the Company's Board of
Directors. Any such additional senior debt securities would rank pari passu in
right of payment with the Senior Debt Securities offered hereby. Further, the
Senior Indenture does not prohibit the Company from entering into additional
indentures and issuing thereunder additional debt securities that may rank pari
passu in right of payment to the Senior Debt Securities offered hereby.
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The Senior Debt Securities offered hereby will be senior in right of
payment to the Company's $100,000,000 principal amount of 8.75% subordinated
debentures due March 1, 2007, the Company's $20,000,000 principal amount of
8.80% subordinated debentures due June 30, 2007, and the Company's $100,000,000
principal amount of 7-3/8% subordinated debentures due June 1, 2005, all issued
under the Subordinated Indenture. See "Capitalization" in the accompanying
Prospectus Supplement and "Description of Debt Securities--General" herein.
SUBORDINATED DEBT SECURITIES
Except as hereinafter provided, the payment of the principal of and
premium, if any, and interest on, and sinking fund requirements for,
Subordinated Debt Securities (to the extent applicable) will be subordinated
and junior in right of payment, to the extent and in the manner set forth in
the Subordinated Indenture, to the prior payment in full of all Senior
Indebtedness of the Company. Subject to modification, if any, as set forth in
the related Prospectus Supplement, the term "Senior Indebtedness" is defined as
(a) the principal of and premium, if any, and interest on (i) all indebtedness
of the Company (other than the Subordinated Debt Securities, if any, offered
hereby, other series of subordinated debt securities of the Company issued
under the Subordinated Indenture, and the Company's convertible subordinated
note referenced below), whether currently outstanding or hereafter created, for
money borrowed by the Company or borrowed by others and guaranteed by the
Company, including, without limitation, indebtedness to subsidiaries, (ii)
Capitalized Lease Obligations of the Company, whenever incurred, (iii) all
indebtedness arising in favor of any bonding company under any performance or
payment bond or other similar bond issued by a company in connection with any
construction contract to which the Company is or was a party, and (iv)
indebtedness or obligations incurred, assumed or guaranteed by the Company in
connection with the acquisition or improvement of any property or asset,
tangible or intangible (including, without limitation, services or materials
purchased or contracted for purchase in the ordinary course of the Company's
business), or the acquisition of any business, unless, in each case referred to
in clauses (i), (ii), (iii) and (iv) above, by the terms of the instrument
creating or evidencing any such indebtedness it is expressly provided that such
indebtedness is on a parity with, or otherwise not superior in right of payment
to, the Subordinated Debt Securities; (b) any other indebtedness, liability or
obligation, contingent or otherwise, of the Company and any guarantee,
endorsement or other contingent obligation in respect of any indebtedness,
liability or obligation of another created, assumed or incurred by the Company
after the date of the Subordinated Indenture, which is, when created, assumed
or incurred, specifically designated by the Company as Senior Indebtedness of
the Company with respect to Subordinated Debt Securities; and (c) any
refundings, renewals or extensions of any indebtedness or other obligation
described in clause (a) or (b) above. (Subordinated Indenture Section 1.01.)
The Company's $100,000,000 aggregate principal amount of 9.05% senior notes due
May 1, 1996, previously issued under an indenture dated as of May 1, 1991, as
supplemented by an indenture supplement with respect thereto dated as of May
10, 1991, both between the Company and Chemical Bank, as trustee, are included
within the definition of Senior Indebtedness. As noted above under
"Description of Debt Securities--General," any borrowings by the Company from
its subsidiaries are also included within the definition of Senior
Indebtedness.
The Subordinated Indenture does not contain any limitation on the amount
of Senior Indebtedness or any other kind of indebtedness that may be incurred
by the Company after the date of this Prospectus. The aggregate amount of the
Company's Senior Indebtedness at March 31, 1995 was approximately $534.8
million, $230.8 million of which represented indebtedness owed by the Company
to its subsidiaries. See "Capitalization" in the accompanying Prospectus
Supplement and "Description of Debt Securities--General" herein.
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The Subordinated Indenture provides that the indebtedness evidenced by
Subordinated Debt Securities ranks on a parity with the Company's $2,100,000
convertible subordinated note due in the year 2000, is entitled to like rights
of subrogation and is otherwise not superior in right of payment to such note.
(Subordinated Indenture Section 3.02.) All series of Subordinated Debt
Securities as well as other series of subordinated debt securities of the
Company issued under the Subordinated Indenture, including the Company's
$100,000,000 8.75% subordinated debentures due March 1, 2007, its $20,000,000
8.80% subordinated debentures due June 30, 2007, and its $100,000,000 7-3/8%
subordinated debentures due June 1, 2005, will rank equally with each other in
right of payment.
Except as hereinafter provided, the Subordinated Indenture prohibits any
payment by the Company of principal of or premium, if any, or interest on, or
sinking fund requirements for, the Subordinated Debt Securities during the
continuance of any default in respect of certain Senior Indebtedness of the
Company or any default under any agreement pursuant to which such Senior
Indebtedness of the Company was issued beyond the period of grace, unless and
until such default on such Senior Indebtedness of the Company shall have been
cured or waived. (Subordinated Indenture Section 3.02.)
Except as hereinafter provided, upon any distribution of assets of the
Company in connection with any dissolution, winding up, liquidation,
reorganization, bankruptcy or other similar proceeding relative to the Company,
its creditors or its property, the holders of all Senior Indebtedness of the
Company will first be entitled to receive payment in full of the principal
thereof and premium, if any, and interest due thereon before the holders of the
Subordinated Debt Securities are entitled to receive any payment of the
principal of and premium, if any, or interest on the Subordinated Debt
Securities. (Subordinated Indenture Section 3.02.) By reason of such
subordination, in the event of insolvency, creditors of the Company who are not
holders of Senior Indebtedness of the Company or of the Subordinated Debt
Securities may recover less, ratably, than holders of Senior Indebtedness of
the Company but may recover more, ratably, than holders of the Subordinated
Debt Securities.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with or on behalf
of a depository located in the United States (a "Depository") identified in the
Prospectus Supplement relating to such series.
The specific terms of the depository arrangements with respect to any
Debt Securities of a series will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following provisions
will apply to all depository arrangements.
Unless otherwise specified in an applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited
with or on behalf of a Depository will be represented by a Global Security
registered in the name of such depository or its nominee. Upon the issuance of
a Global Security in registered form, the Depository for such Global Security
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of institutions that have accounts with such Depository or its
nominee ("participants"). The accounts to be credited shall be designated by
the underwriters or agents of such Debt Securities or by the Company, if such
Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in such Global Securities will be limited to participants
or persons that may hold interests through participants. Ownership of
beneficial interests by participants in such Global Securities will be shown
on, and the transfer of that ownership interest will be effected only through,
records maintained by the Depository or its nominee for such Global Securities.
Ownership
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of beneficial interests in Global Securities by persons that hold through
participants will be shown on, and the transfer of that ownership interest
within such participant will be effected only through, records maintained by
such participant. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depository for a Global Security in registered form, or
its nominee, is the registered owner of such Global Security, such Depository
or such nominee, as the case may be, will be considered the sole owner or
holder of the Debt Securities of the series represented by such Global Security
for all purposes under the respective Indentures governing such Debt
Securities. Except as set forth below, owners of beneficial interests in such
Global Security will not be entitled to have Debt Securities of the series
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities of such series
in definitive form, and will not be considered the owners or holders thereof
under the applicable Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities of a series registered in the name of or held by a Depository or its
nominee will be made to the Depository or its nominee, as the case may be, as
the registered owner or the holder of the Global Security representing such
Debt Securities. None of the Company, the Trustee, any Paying Agent, or the
applicable Debt Security Registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
for such Debt Securities or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Company expects that the Depository for Debt Securities of a series,
upon receipt of any payment of principal, premium or interest in respect of a
permanent Global Security, will credit immediately participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of the
Depository. The Company also expects that payments by participants to owners
of beneficial interests in such Global Security held through such participants
will be governed by standing instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or
registered in "street name," and such payments will be the responsibility of
such participants. However, the Company has no control over the practices of
the Depository and/or the participants and there can be no assurance that these
practices will not be changed.
A Global Security may not be transferred except as a whole by the
Depository for such Global Security to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor of such
Depository or a nominee of such successor. If a Depository for Debt Securities
of a series is at any time unwilling or unable to continue as depository and a
successor depository is not appointed by the Company within 90 days, the
Company will issue Debt Securities of such series in definitive registered form
in exchange for the Global Security or Securities representing such Debt
Securities. In addition, the Company may at any time and in its sole
discretion determine not to have any Debt Securities of a series in registered
form represented by one or more Global Securities and, in such event, will
issue Debt Securities in definitive form in exchange for the Global Security or
Securities representing such Debt Securities. In any such instance, an owner
of a beneficial interest in a Global Security will be entitled to physical
delivery in definitive form of Debt Securities of the series represented by
such Global Security equal in principal amount to such beneficial interest and
to have such Debt Securities registered in its name.
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EVENTS OF DEFAULT AND NOTICE THEREOF
Each of the Indentures defines an Event of Default with respect to any
series of Debt Securities as being any one of the following events and such
other events as may be established for the Debt Securities of a particular
series (as set forth in the related Prospectus Supplement): (a) failure to pay
interest on the Debt Securities when due, continued for 30 days; (b) failure to
pay (whether or not prohibited by any subordination provisions, if applicable)
principal (including any sinking fund installment) of or premium, if any, on
the Debt Securities when due; (c) failure to observe or perform any other
covenant of the Company set forth in the applicable Indenture or the Debt
Securities of such series, continued for 60 days after notice as provided in
such Indenture; and (d) certain events of bankruptcy, insolvency or
reorganization in respect of the Company. (Section 7.01.)
Within 90 days after the occurrence of a Default known to the Trustee,
the Trustee is required to transmit notice thereof to the holders of the
applicable Series of Debt Securities. Except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security, or in the payment of any sinking fund installment, the Trustee may
withhold such notice if and so long as it in good faith determines that the
withholding of such notice is in the interests of holders of the Debt
Securities. (Section 7.07.) If an Event of Default in respect of a particular
series of Senior Debt Securities shall occur and be continuing, the Trustee or
the holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series outstanding may declare the principal of such series
due and payable immediately. (Section 7.01.) However, if prior to the entry
of any judgment or decree for the accelerated amount, the Company shall pay or
deposit with the Trustee all principal, premium, if any, and interest
arrearage, then the holders of not less than a majority in aggregate principal
amount of the Debt Securities of the affected series shall have the right to
waive all defaults and the consequences of having declared all principal
payments due. Such waiver will not, however, be operative as against nor
impair any rights arising as a result of any subsequent Event of Default with
respect to such series. (Section 7.01.) The Trustee will not be charged with
knowledge of any Event of Default other than the Company's failure to make
principal and interest payments unless actual written notice thereof is
received by the Trustee. (Section 7.01.) No Event of Default with respect to
a particular series of Debt Securities necessarily constitutes an Event of
Default with respect to any other series of Debt Securities.
The Indentures contain provisions regarding limitations on the right to
institute legal proceedings. No holder of any Debt Securities of a particular
series shall have the right to institute an action or proceeding for rights
arising under the applicable Indenture unless (i) such holder has given written
notice of default to the Trustee; (ii) the holders of not less than 25% of the
aggregate principal amount of Debt Securities of such series shall have made a
written request to the Trustee to institute an action and offered the Trustee
such reasonable indemnification as it may require; (iii) the Trustee shall not
have commenced such action within 60 days of receipt of such notice and
indemnification offer; and (iv) no direction inconsistent with such request has
been given to the Trustee by the holders of not less than a majority of the
aggregate principal amount of the Debt Securities of such series then
outstanding. Notwithstanding the foregoing, subject to applicable law and any
applicable subordination provisions, nothing shall prevent the holders of Debt
Securities from enforcing payment of the principal of or premium, if any, or
interest on their Debt Securities. No holder of Debt Securities of a
particular series may have the right to prejudice the rights or obtain priority
or preference over the rights of any other holder of Debt Securities of such
series. (Section 7.04.)
The holders of a majority in aggregate principal amount of the Debt
Securities of such series outstanding at the time may direct the time, method
and place of conducting any proceeding for any
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remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, provided, however, that the Trustee shall have the right to
decline to follow such direction if, being advised by counsel, the Trustee
determines that the action so directed may not lawfully be taken, or if the
Trustee in good faith determines that the action so directed would be unduly
prejudicial to the holders of the Debt Securities not taking part in such
action or would involve the Trustee in personal liability. (Section 7.06.)
Each Indenture provides that, in case an Event of Default in respect of a
particular series of Debt Securities shall occur (which shall not have been
cured or waived), the Trustee will be required to use the degree of care of a
prudent man in the conduct of his own affairs. (Section 8.01.) Subject to
such provisions, the Trustee will be under no obligation to exercise any of its
rights or power under the applicable Indenture at the request of any of the
holders of the Debt Securities of such series unless they shall have offered to
the Trustee reasonable security or indemnity. (Section 8.02.)
The Company will be required to furnish to the Trustee annually a
statement as to the fulfillment by the Company of all of its obligations under
the relevant Indenture. (Section 5.06.)
DEFEASANCE
The Company may terminate its obligations under the applicable Indenture
with respect to the Debt Securities of a series at any time by acquiring and
delivering all outstanding Debt Securities of such series to the Trustee for
cancellation. The Company may also terminate all of its obligations under the
applicable Indenture with respect to the Debt Securities of a series, other
than its obligations in respect of payment of principal of and interest on the
Debt Securities of such series, at any time by depositing in trust with the
Trustee money or non-callable U.S. Government Obligations sufficient to pay all
remaining indebtedness on the Debt Securities of such series. Money or
securities so deposited in trust with the Trustee is for the sole benefit of
the holders of the Debt Securities of such series and, to the extent allocated
for payment of the Debt Securities of such series, shall not be subject to any
subordination provisions of the Subordinated Indenture. (Section 13.01.)
MERGER AND CONSOLIDATION
The Company may merge with another corporation if the Company is the
surviving corporation, or may consolidate with or merge into another
corporation or transfer all or substantially all of its assets to another
corporation if the resulting, surviving or transferee corporation assumes all
obligations of the Company under the Debt Securities of each series and the
Indentures, and is not immediately thereafter in default under any covenant in
the Indentures. (Article Twelve.)
MODIFICATION OF THE INDENTURES
With the consent of the holders of not less than a majority in aggregate
principal amount of the outstanding Debt Securities of a particular series, the
related Indenture, the rights and obligations of the Company and the rights of
the holders of such series of Debt Securities may be modified by the Company
and the Trustee. However, no modification of the terms of payment of principal
of or premium, if any, or interest on Debt Securities of any series, and no
modification reducing the percentage of outstanding Debt Securities of a series
required for modification, will be effective against any holder of a Debt
Security of such series affected thereby without the holder's consent. The
Company and the Trustee may
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also enter into supplemental indentures, without obtaining the consent of the
holders of any series of Debt Securities, to cure any ambiguity or to correct
or supplement any provision of the applicable Indenture or any supplemental
indenture which may be defective or inconsistent with any other provision, to
pledge any property to or with the Trustee or to make any other provisions with
respect to matters or questions arising under the Indentures, provided that
such action shall not adversely affect the interests of the holders of the Debt
Securities. Such supplemental indentures may also be entered into without the
consent of holders of any series of Debt Securities to set forth the terms of
additional series of Debt Securities, to evidence the succession of another
person to the Company or to add to the covenants of the Company. (Article
Eleven.)
CERTIFICATES AND OPINIONS TO BE FURNISHED TO TRUSTEE
Each Indenture provides that, in addition to such other certificates or
opinions as may be specifically required by other provisions of such Indenture,
every application by the Company for action by the Trustee thereunder shall be
accompanied by a certificate of certain officers of the Company and an opinion
of counsel (who may be counsel for the Company) stating that, in the opinion of
the signers, all conditions precedent to such action have been complied with.
(Section 15.07.)
REPORT TO HOLDERS OF DEBT SECURITIES
Audited financial statements of the Company will be provided annually to
holders of Debt Securities. (Section 6.03.) The Trustee is required to submit
an annual report to the holders of the Debt Securities regarding, among other
things, the Trustee's eligibility to serve as such, the priority of the
Trustee's claims regarding certain advances made by it, and any action taken by
the Trustee materially affecting the Debt Securities.
THE TRUSTEE
Texas Commerce Bank National Association, whose Corporate Trust Office is
located at 1900 Pacific Avenue, Dallas, Texas 75201, will be the Trustee under
the Subordinated Indenture with respect to each series of Subordinated Debt
Securities issued thereunder and the Trustee under the Senior Indenture with
respect to each series of Senior Debt Securities issued thereunder. Texas
Commerce Bank National Association also serves as Trustee with respect to the
Company's $100,000,000 8.75% subordinated debentures due March 1, 2007, its
$20,000,000 8.80% subordinated debentures due June 30, 2007, and its
$100,000,000 7-3/8% subordinated debentures due June 1, 2005, all previously
issued under the Subordinated Indenture, as supplemented by a Subordinated
Indenture Supplement dated as of March 12, 1987, a Subordinated Indenture
Supplement dated as of June 17, 1987, and a Subordinated Indenture Supplement
dated as of June 9, 1995, respectively.
Pursuant to applicable provisions of the Indentures and the Trust
Indenture Act of 1939, as amended, governing trustee conflicts of interest, any
uncured Event of Default with respect to any series of Senior Debt Securities
will force the Trustee to resign as trustee under either the Subordinated
Indenture or the Senior Indenture. Likewise, any uncured Event of Default with
respect to any series of Subordinated Debt Securities will force the Trustee to
resign as trustee under either the Senior Indenture or the Subordinated
Indenture. Any such resignation will require the appointment of a successor
trustee under the applicable Indenture in accordance with the terms and
conditions thereof.
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Chemical Bank, an affiliate of the Trustee, serves as trustee under an
indenture dated as of May 1, 1991, and an indenture supplement dated as of May
10, 1991, with respect to the Company's $100,000,000 principal amount of 9.05%
senior notes due May 1, 1996.
Centex and its affiliates maintain other banking relationships in the
ordinary course of business with the Trustee and its affiliates.
The Trustee may resign or be removed by the Company with respect to one
or more series of Debt Securities and a successor trustee may be appointed to
act with respect to any such series. The holders of a majority in aggregate
principal amount of the Debt Securities of any series may remove the Trustee
with respect to the Debt Securities of such series. (Section 8.10.)
Each Indenture contains certain limitations on the right of the Trustee
thereunder, in the event that it becomes a creditor of the Company, to obtain
payment of claims in certain cases, or to realize on certain property received
in respect of any such claim as security or otherwise. (Section 8.13.)
RATINGS
Particular series of Debt Securities may be rated by one or more
nationally recognized statistical rating agencies. The rating agency or
agencies and rating or ratings to be assigned with respect to such series of
Debt Securities will be specified in the related Prospectus Supplement.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters, and also
may sell Debt Securities directly to other purchasers or through agents.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed,
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company, or from purchasers of Debt Securities for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on
the resale of Debt Securities by them may be deemed to be underwriting
discounts and commissions, under the Securities Act of 1933, as amended (the
"Act"). Any such underwriter or agent will be identified, and any such
compensation received from the Company will be described, in the Prospectus
Supplement.
The Debt Securities, when first issued, will have no established trading
market. Any underwriters or agents to or through whom Debt Securities are sold
by the Company for public offering and sale may make a market in such Debt
Securities, but such underwriters or agents will not be obligated to do so and
may discontinue any market making activities at any time without notice. No
assurance can be given as to the existence or the liquidity of any trading
market for any Debt Securities.
23
<PAGE> 30
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Debt Securities from the Company pursuant
to contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must be
approved by the Company. The obligations of any purchaser under any such
contract will be subject to the condition that the purchase of the Debt
Securities shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject. The underwriters and such
other agents will not have any responsibility in respect of the validity or
performance of such contracts.
Under agreements which may be entered into by the Company, underwriters
and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Act.
The specific terms and manner of sale of specific series of Debt
Securities offered hereby are set forth or summarized in an accompanying
Prospectus Supplement.
LEGAL OPINIONS
The validity of the Debt Securities offered hereby and certain other
legal matters will be passed upon for the Company by Raymond G. Smerge, Vice
President, Chief Legal Officer and Secretary of the Company. Certain legal
matters in connection with the Debt Securities offered hereby will be passed
upon for the Company by Thompson & Knight, A Professional Corporation, Dallas,
Texas, special counsel for the Company.
EXPERTS
The consolidated balance sheets of Centex Corporation and its
subsidiaries as of March 31, 1995 and 1994, and the related consolidated
statements of earnings, stockholders' equity and cash flows for each of the
three years in the period ended March 31, 1995, incorporated by reference in
the Joint Annual Report on Form 10-K, as amended, of the Company and 3333
Holding Corporation and Centex Development Company, L.P. for the fiscal year
ended March 31, 1995, and incorporated by reference in this Prospectus, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated herein by
reference in reliance upon the authority of said firm as experts in accounting
and auditing in giving said report.
24
<PAGE> 31
<TABLE>
<S> <C>
================================================== =====================================
NO PERSON IS AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER
THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT $
OR THE PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN CENTEX CORPORATION
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY
ANY SECURITIES OTHER THAN THE SECURITIES OFFERED
BY THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
OR AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES [DEBT SECURITIES]
IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT
OR THE PROSPECTUS NOR ANY SALE MADE THEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS OR THAT
THE INFORMATION CONTAINED HEREIN OR THEREIN IS ----------
CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
Prospectus Supplement
------------ ----------
TABLE OF CONTENTS
Page
----
Prospectus Supplement
Use of Proceeds . . . . . . . . . . . . . . . . S-2 [UNDERWRITERS]
Capitalization . . . . . . . . . . . . . . . . S-2
[Ratings . . . . . . . . . . . . . . . . . . . S-3]
[Recent Developments . . . . . . . . . . . . . S-3]
Description of [Debt Securities] . . . . . . . S-3
Underwriting . . . . . . . . . . . . . . . . . S-4
[DATE]
Prospectus
Available Information . . . . . . . . . . . . . 2
Incorporation of Certain Documents by
Reference . . . . . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . 3
Use of Proceeds . . . . . . . . . . . . . . . . 3
Ratio of Earnings to Fixed Charges . . . . . . 3
Summary of Selected Financial Data . . . . . . 4
Business . . . . . . . . . . . . . . . . . . . 4
Description of Debt Securities . . . . . . . . 14
Plan of Distribution . . . . . . . . . . . . . 23
Legal Opinions . . . . . . . . . . . . . . . . 24
Experts . . . . . . . . . . . . . . . . . . . . 24
=================================================== =====================================
</TABLE>
<PAGE> 32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC registration fee . . . . . . . . . . . . . . . . . . . . . . . . $ 34,483
Trustee's fees and expenses (including legal fees) . . . . . . . . . 20,000
Accounting fees and expenses . . . . . . . . . . . . . . . . . . . . 25,000
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . 25,000
Printing expenses . . . . . . . . . . . . . . . . . . . . . . . . . 10,000
Blue Sky fees and expenses (including legal fees) . . . . . . . . . 10,000
Rating Agency fees . . . . . . . . . . . . . . . . . . . . . . . . . 65,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000
--------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $194,483
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Nevada corporation. Under Section 78.751 of the
Nevada General Corporation Law, the Registrant has the power to indemnify its
officers and directors, subject to certain limitations. In addition, an
amendment to Chapter 78 of the Nevada Revised Statutes was enacted by the State
of Nevada in March 1987 in order to permit Nevada corporations to include in
their articles of incorporation a provision eliminating the personal liability
of their directors and officers to the corporation or its stockholders for
damages resulting from certain breaches of fiduciary duty. An amendment to the
Articles of Incorporation of the Registrant was adopted by its stockholders at
the annual meeting thereof held on July 15, 1987 in order to effect the
permitted limitation on liability.
Reference is made to Article Tenth of the Registrant's Restated
Articles of Incorporation incorporated by reference as Exhibit 4.1 hereto and
to Article VI of the Registrant's By-laws incorporated by reference as Exhibit
4.2 hereto.
Reference is also made to the indemnification provisions of Section 8
of the form of Underwriting Agreement filed as Exhibit 1.1 hereto for
provisions relating to the indemnification of directors, officers and
controlling persons against certain liabilities, including liabilities under
the Securities Act of 1933, as amended.
The Registrant has entered into indemnification contracts with the
Registrant's directors as such, and with its directors in their capacities (i)
as officers, employees or agents of the Registrant and as directors or officers
of the various subsidiaries of the Registrant; (ii) as directors, officers,
employees or agents of other companies or enterprises when they are serving in
any such capacity at the request of the Registrant; and (iii) as a fiduciary
with respect to any employee benefit plan or trust of the Registrant or any
subsidiary of the Registrant. It is anticipated that similar contracts may be
entered into, from time to time, with certain officers of the Registrant and
its subsidiaries who are not directors of the Registrant. The general effect of
the indemnification contracts is to provide that the indemnitees shall be
indemnified to the fullest possible extent permitted by law against all
expenses (including attorneys' fees), judgments,
II-1
<PAGE> 33
fines and amounts paid in settlement actually and reasonably incurred by them
in any action or proceeding, including any action by or in the right of the
Registrant, by reason of their service in the foregoing capacities. The
indemnification contracts were approved by the Registrant's stockholders at the
annual meeting of stockholders held on July 16, 1986.
The Registrant also maintains insurance to protect itself and its
directors, officers, employees and agents against expenses, liabilities and
losses incurred by such persons in connection with their service in the
foregoing capacities.
The foregoing summaries are necessarily subject to the complete text
of the statute, articles of incorporation, by-laws, agreements and insurance
policies referred to above and are qualified in their entirety by reference
thereto.
ITEM 16. EXHIBITS
The information required by this Item 16 is set forth in the Index to
Exhibits accompanying this Registration Statement.
ITEM 17. UNDERTAKINGS
(a) Rule 415 offering.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registrant
Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement
II-2
<PAGE> 34
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) Filings incorporating subsequent Exchange Act documents by
reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Acceleration of effectiveness.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions of Item 15, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) Rule 430A offering.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post- effective amendment that
contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-3
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
as of May 18, 1995.
CENTEX CORPORATION
(Registrant)
By: /s/ Laurence E. Hirsch
----------------------------------
Laurence E. Hirsch
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated. Each person whose
signature appears below hereby authorizes Laurence E. Hirsch, William J
Gillilan III and David W. Quinn, or any of them, as attorney-in- fact to
execute in the name and on behalf of each such person individually and in each
capacity stated below and to file any amendments to this Registration
Statement, including any and all pre-effective and post-effective amendments,
with all exhibits thereto and other documents in connection therewith.
<TABLE>
<CAPTION>
SIGNATURES CAPACITY IN WHICH SIGNED DATE
---------- ------------------------ ----
<S> <C> <C>
/s/ Laurence E. Hirsch Chairman of the Board and May 18, 1995
----------------------------------------- Chief Executive Officer;
Laurence E. Hirsch Director
(Principal Executive Officer)
/s/ William J Gillilan III President and Chief May 18, 1995
----------------------------------------- Operating Officer; Director
William J Gillilan III
/s/ David W. Quinn Executive Vice President and May 18, 1995
----------------------------------------- Chief Financial Officer;
David W. Quinn Director
(Principal Financial Officer)
</TABLE>
II-4
<PAGE> 36
<TABLE>
<CAPTION>
SIGNATURES CAPACITY IN WHICH SIGNED DATE
---------- ------------------------ ----
<S> <C> <C>
/s/ Michael S. Albright Vice President-Finance May 18, 1995
----------------------------------------- and Controller
Michael S. Albright (Principal Accounting Officer)
/s/ Alan B. Coleman Director May 18, 1995
-----------------------------------------
Alan B. Coleman
/s/ Dan W. Cook III Director May 18, 1995
-----------------------------------------
Dan W. Cook III
/s/ Juan L. Elek Director May 18, 1995
-----------------------------------------
Juan L. Elek
/s/ Clint W. Murchison, III Director May 18, 1995
-----------------------------------------
Clint W. Murchison, III
/s/ Charles H. Pistor Director May 18, 1995
-----------------------------------------
Charles H. Pistor
/s/ Paul R. Seegers Director May 18, 1995
-----------------------------------------
Paul R. Seegers
/s/ Paul T. Stoffel Director May 22, 1995
-----------------------------------------
Paul T. Stoffel
</TABLE>
II-5
<PAGE> 37
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQ. NO.
NUMBER Page
------ --------
<S> <C> <C>
1.1 Form of Underwriting Agreement, including form of Pricing Agreement
4.1 Restated Articles of Incorporation of the Registrant (filed as Exhibit 3.1 to the
Joint Annual Report of the Registrant, 3333 Holding Corporation and Centex
Development Company, L.P. on Form 10-K for the fiscal year ended March 31, 1993
(the "1993 10-K"), and incorporated herein by reference)
4.2 By-laws of the Registrant (filed as Exhibit 3.2 to the 1993 10-K, and incorporated
herein by reference)
4.3 Form of Indenture with respect to Senior Debt Securities ("Senior Indenture"),
including form of Senior Debt Security, to be entered into between the Registrant
and Texas Commerce Bank National Association, as Trustee
4.4 Form of Indenture Supplement to Senior Indenture
4.5 Indenture with respect to Subordinated Debt Securities ("Subordinated Indenture"),
including form of Subordinated Debt Security, dated as of March 12, 1987, between
the Registrant and Texas Commerce Bank National Association, as Trustee (filed as
Exhibit 4.7 to the 1993 10-K, and incorporated herein by reference)
4.6 Form of Indenture Supplement to Subordinated Indenture (filed as Exhibit 4.4 to
the Registrant's Form S-3 Registration Statement (File No. 33-8928), and
incorporated herein by reference)
5.1 Opinion of Raymond G. Smerge, Esq.
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Raymond G. Smerge, Esq. (contained in his opinion filed as Exhibit 5.1)
24.1 Power of attorney of certain signatories (contained on signature page included in
Part II of the Registration Statement)
25.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act
of 1939, as amended, with respect to Trustee for Senior Debt Securities
25.2 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act
of 1939, as amended, with respect to Trustee for Subordinated Debt Securities
99.1 Form of Prospectus Supplement (contained in Part I of this Registration Statement)
</TABLE>
II-6
<PAGE> 1
EXHIBIT 1.1
[Form of July 21, 1995]
CENTEX CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
__________________________, 199___
To the Representatives of the
several Underwriters named
in the respective Pricing
Agreements hereinafter
described.
Dear Sirs:
From time to time Centex Corporation, a Nevada corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein), certain of its debt securities (the "Securities"), which
may be senior debt securities or subordinated debt securities as specified in
Schedule II to such Pricing Agreement (with respect to such Pricing Agreement,
the "Designated Securities").
The term and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom you, designated
as representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto, will act as representatives (the
"Representatives"). The term "Representative" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement (this "Agreement") shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase any of the Securities. The obligation of the Company
to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the
<PAGE> 2
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement (File No.
33-___________________) in respect of the Securities has been filed
with the Securities and Exchange Commission (the "Commission") in the
form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statement, to the
Representatives for each of the other Underwriters, and such
registration statement in such form has been declared effective by the
Commission and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement being
hereinafter called a "Preliminary Prospectus;" the various parts of
such registration statement, including all exhibits thereto (other
than the two Statements of Eligibility Under the Trust Indenture Act
of 1939 of a Corporation Designated to Act as Trustee, on Form T-1),
each as amended, at the time such part became effective, being
hereinafter collectively called the "Registration Statement;" the
prospectus relating to the Securities and the prospectus supplement
relating to any particular issuance of Designated Securities, in the
form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
being hereinafter collectively called the "Prospectus;" 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 "Act"), as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or Prospectus
shall be deemed to refer to and include any documents filed after such
date 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 Designated Securities in
the form in which it is first filed, or transmitted for filing, with
the Commission pursuant to Rule 424 under the Act, including any
documents incorporated by reference therein as of the date of such
filing or transmission);
(b) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in all
material respects to the requirements of
-2-
<PAGE> 3
the Exchange Act and the rules and regulations of the Commission
thereunder; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder;
(c) Each part of the Registration Statement and the
Prospectus conforms, and any amendments or supplements to the
Registration Statement or the Prospectus will conform, on the date of
filing thereof with the Commission, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), as applicable, and the rules and
regulations of the Commission thereunder; the Registration Statement
and any amendment thereto, as of the applicable effective date, did
not or 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 or will
not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty 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 an Underwriter of Designated Securities expressly for use
in the Prospectus, as amended or supplemented, relating to such
Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, resulting in
an adverse effect on the business, assets, financial position or
prospects of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise set
forth or contemplated in the Prospectus: (i) there has not been any
material change in the capital stock or long-term debt of the Company
or any of its subsidiaries; (ii) there has not been any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the business, assets, financial
position or prospects of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(iii) no event has occurred that would result in a material write-down
in assets; (iv) there have been no material transactions entered into
by the Company, other than those publicly disclosed or in the ordinary
course of business; (v) the Company has not repurchased any of its
outstanding capital stock except as set forth in or contemplated by
the Prospectus; and (vi) there have been no dividends or distributions
of any kind declared, paid or made by the Company in respect of its
capital stock except for regular cash dividends paid in the ordinary
course of business;
-3-
<PAGE> 4
(e) The Company and its subsidiaries have indefeasible
title in fee simple to all real property and indefeasible title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as are not material to the business of the Company
and its subsidiaries, taken as a whole; and any real property and
buildings held under lease by the Company and its subsidiaries are
held by them under leases that are valid, subsisting and in full force
and effect, with such exceptions as are not material to the business
of the Company and its subsidiaries, taken as a whole;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Nevada, and each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; each of the
Company and its subsidiaries has full power and authority (corporate
and other) to own its properties and conduct its business as
described, or incorporated by reference, in the Prospectus, and has
been duly qualified as a foreign corporation 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 of
each subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and nonassessable and (except for
directors' qualifying shares and except 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 Securities have been duly authorized, and, when
Designated Securities are executed, authenticated, issued and
delivered against payment therefor pursuant to this Agreement, the
Indenture and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities 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 Indenture, which has been or will be incorporated by reference as
an exhibit to the Registration Statement; the Indenture has been duly
authorized, executed and delivered by the Company and constitutes a
valid and legally binding instrument, enforceable against the Company
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; at the Time of Delivery (as defined in
Section 4 hereof), the
-4-
<PAGE> 5
Indenture will have been duly qualified under the Trust Indenture Act;
and the Securities and the Indenture will conform in all material
respects to the descriptions thereof in the Prospectus;
(i) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any Pricing 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 Securities or the consummation by the Company of the other
transactions contemplated by this Agreement or any Pricing Agreement
or the Indenture, except such as have been, or will have been prior to
the Time of Delivery, obtained under the 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
Securities by the Underwriters;
(j) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(k) Arthur Andersen LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules
and regulations of the Commission 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 Prospectus,
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<PAGE> 6
comply in all material respects with the requirements of the Act and
fairly present the consolidated financial position and the
consolidated results of the operations of the Company and its
subsidiaries at the respective dates and for the respective periods to
which they apply, and such financial statements have been prepared in
conformity with generally accepted accounting principles, consistently
applied throughout the periods involved except as may be expressly
stated in the notes thereto. The financial information and
statistical data set forth in the Prospectus under the caption
"Summary of Selected Financial Data" are fairly presented and prepared
on a basis consistent with such consolidated financial statements or
the books and records of the Company, as the case may be, unless
otherwise stated in the Prospectus;
(n) Except as described in the Prospectus, the Company
and each of its subsidiaries have all necessary licenses,
certificates, permits, authorizations, approvals, rights and orders of
and from all governmental agencies or bodies having jurisdiction over
the Company or any of its subsidiaries to own their respective
properties and conduct their respective businesses as described in the
Prospectus, the failure to possess or the failure to operate in
compliance with which would have a material adverse effect on the
business of the Company and its subsidiaries, taken as a whole, and
the Company has received no notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely
affect the business, assets, financial position or prospects of the
Company and its subsidiaries, taken as a whole;
(o) This Agreement has been duly and validly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, and the Pricing Agreement with respect to
the Designated Securities, when executed and delivered by the Company,
will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject,
in each case, as to enforcement, to bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to or
affecting creditors' rights, and to general equity principles, and
except to the extent that rights of indemnification hereunder may be
limited by applicable laws or equity principles;
(p) Except as described in the Prospectus, each of the
Company and its subsidiaries owns or possesses all of the patents,
trademarks, service marks, trade names, copyrights and licenses and
rights with respect to the foregoing, necessary for the present
conduct of its business, without any known conflict with the rights of
others, the result of which conflict would materially and adversely
affect the business, assets, financial position or prospects of the
Company and its subsidiaries, taken as a whole;
(q) There are no contracts, indentures, mortgages, loan
agreements, notes, bonds, debentures, other evidences of indebtedness,
leases or other agreements or instruments of the Company of a
character required to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or referred to or filed
as required;
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<PAGE> 7
(r) No labor disturbance exists with the employees of the
Company or any of its subsidiaries, or, to the best of the Company's
knowledge, is imminent, that would result in a material adverse effect
upon the Company and its subsidiaries, taken as a whole, and the
Company has not received notice of any existing or imminent labor
disturbance by the employees of any of its principal suppliers, that
might reasonably be expected to materially adversely affect the
business, assets, financial position or prospects of the Company and
its subsidiaries, taken as a whole; and
(s) The conditions to the use of a registration statement
on Form S-3 under the 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.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus, as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive or book-entry
form, as specified in the Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of
the purchase price therefor (by wire transfer of immediately available funds to
such bank account or accounts as may be specified by the Company) to the
Company at the time and date of delivery of such Securities or at such other
time and date as the Representatives and the Company may agree upon in writing,
such time and date being called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To make no further amendment or any supplement
to the Registration Statement or Prospectus, as amended or
supplemented, after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery of such Securities that
shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after
such Time of Delivery and furnish the Representatives with copies
thereof; to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or become effective or any supplement to the
Prospectus or any amended Prospectus has been filed, or transmitted
for filing, and to furnish you with copies thereof; to file promptly
all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the
offering or sale of such Securities; and during such same period to
advise you, promptly after it receives notice thereof, of the issuance
by the Commission
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<PAGE> 8
of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or Prospectus, of the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities; provided that, in connection
therewith, the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus, as amended or supplemented, in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time in connection with
the offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus, as then
amended or supplemented, would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if, for any other reason, it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and, upon their
request, to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus that will
correct such statement or omission or effect such compliance;
(d) To make generally available to its security holders
as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement and of
the post-effective amendment thereto, hereinafter referred to, an
earning statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158);
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Company by the
Representatives, and (ii) the Time of Delivery for such Designated
Securities, not to
-8-
<PAGE> 9
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company that mature more than one year after such
Time of Delivery and that are substantially similar to such Designated
Securities, without the prior written consent of the Representatives;
(f) To furnish to the holders of the Securities as soon
as practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement) condensed consolidated
financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
(g) During a period of two years from the effective date
of the Registration Statement, to furnish to the Representatives
copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to the Representatives (i) as
soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which the Securities or any class of securities
of the Company is listed other than registration statements filed
under the Act; and (ii) such additional information concerning the
business and financial condition of the Company as the Representatives
may from time to time reasonably request (such financial statements to
be on a consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission), provided such
information is prepared in the ordinary course of business and is not
otherwise confidential; and further provided that the foregoing
restriction on access to information shall not prohibit the
Representatives' access to such information necessary for the defense
of any litigation threatened or filed against the Underwriters
relating to this Agreement and the transactions contemplated hereby;
and
(h) to apply in the manner described under "Use of
Proceeds" in the Prospectus, the proceeds it receives from the sale of
the Securities.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Pricing Agreement, the
Indenture, the Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel in
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<PAGE> 10
connection with such qualification and in connection with any Blue Sky or legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the filing fees incident to any required review, if
any, by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing the Securities; (vii)
the fees and expenses of the trustee designated in the Indenture (the
"Trustee") and any agent of the Trustee and the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities;
and (viii) all other costs and expenses incident to the performance of its
obligations hereunder that are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery for such Designated Securities,
true and correct, the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) 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
Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the reasonable
satisfaction of the Representatives;
(b) __________________________________, counsel for the
Underwriters, shall have furnished to the Representatives such opinion
or opinions, dated the Time of Delivery for such Designated
Securities, with respect to the incorporation of the Company, the
validity of the Indenture, the Designated Securities, the Registration
Statement, the Prospectus, as amended or supplemented, and other
related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(c) Raymond G. Smerge, Vice President, Chief Legal
Officer and Secretary (as to (i) through (vi) and (ix), (xii) and
(xiii) below) and Thompson & Knight, A Professional Corporation,
special counsel for the Company (as to (vii), (viii), (x), (xi) and
(xiii) below), shall have furnished to the Representatives their
respective written opinions, dated the Time of Delivery for such
Designated Securities, in form and substance reasonably satisfactory
to the Representatives, 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, as amended or
supplemented;
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<PAGE> 11
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, as amended or
supplemented, and all of the outstanding shares of capital
stock of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each jurisdiction in which the
failure to so qualify would have a material adverse effect
upon the Company and its subsidiaries, taken as a whole (such
counsel being entitled to rely in respect of the opinion in
this clause upon certificates issued by various state
authorities as deemed necessary by such counsel);
(iv) Each subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation; each subsidiary of the Company has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each
jurisdiction in which the failure to so qualify would have a
material adverse effect upon the Company and its subsidiaries,
taken as a whole (such counsel being entitled to rely in
respect of the opinion in this clause upon certificates issued
by various state authorities as deemed necessary by such
counsel); and all of the outstanding shares of capital stock
of each such subsidiary have been duly and validly authorized
and issued, are fully paid and nonassessable, and (except for
directors' qualifying shares and except as otherwise set forth
in the Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims affecting transferability or voting;
(v) To the best of such counsel's knowledge
and other than as set forth or contemplated, or incorporated
by reference, in the Prospectus, as amended or supplemented,
there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the business,
assets, financial position or prospects of the Company and its
subsidiaries, taken as a whole; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(vi) This Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly
authorized, executed and delivered by the Company and each
constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with
their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles that may limit the
availability of certain remedies (including specific
performance), and except to the extent that rights of
indemnification hereunder may be limited by applicable law or
equity principles;
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<PAGE> 12
(vii) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles that may limit the availability of certain
remedies (including specific performance); and the Designated
Securities and the Indenture conform in all material respects
to the descriptions thereof in the Prospectus, as amended or
supplemented;
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and legally binding instrument enforceable against the Company
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles that may limit the
availability of certain remedies (including specific
performance); and the Indenture has been duly qualified under
the Trust Indenture Act;
(ix) The issue and sale of the Designated
Securities and the compliance by the Company with all of the
provisions of the Designated Securities, the Indenture, and
this Agreement and the Pricing Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Articles of Incorporation, as amended or
restated, or the Bylaws of the Company or any statute or
order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties;
(x) To the best of such counsel's knowledge,
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Designated
Securities or the consummation of the other transactions
contemplated by this Agreement, the Pricing Agreement or the
Indenture, except such as have been obtained under the 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 Designated
Securities by the Underwriters;
(xi) The Registration Statement is effective
under the Act, and, to the best of such counsel's knowledge,
no proceedings for a stop order are pending or threatened
under the Act;
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<PAGE> 13
(xii) The documents incorporated by reference
in the Prospectus, as amended or supplemented (other than the
financial statements, statistical data and related schedules
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder; such counsel has no reason 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,
statistical data and related schedules therein, as to which
such counsel need express no belief), contained, in the case
of a registration statement that became effective under the
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 Act or the Exchange Act
with the Commission, 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
(xiii) The Registration Statement and the
Prospectus (other than the financial statements, statistical
data and related schedules therein, as to which such counsel
need express no opinion), at the effective date thereof and at
the Time of Delivery for the Designated Securities complied as
to form in all material respects with the requirements of the
Act and the Trust Indenture Act, as applicable, and the rules
and regulations thereunder; such counsel has no reason to
believe that, as of the effective date of the Registration
Statement, the Registration Statement (other than the
financial statements, statistical data and related schedules
therein, as to which such counsel need express no belief)
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that, as of the Time of Delivery, the Prospectus (or, as of
its date, any amendment or supplement thereto made by the
Company prior to the Time of Delivery) (other than the
financial statements, statistical data and related schedules
therein, as to which such counsel need express no belief)
contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(d) On the date of the Pricing Agreement for such
Designated Securities and at the Time of Delivery for such Designated
Securities, Arthur Andersen LLP, who have certified the financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, shall have
furnished to the Representatives a letter, dated as of the date of
such Pricing Agreement, and a letter
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<PAGE> 14
dated such Time of Delivery, respectively, to the effect set forth in
Annex II hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may
reasonably request and in form and substance reasonably satisfactory
to the Representatives;
(e) (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 (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 the reasonable judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus, as amended or
supplemented;
(f) Subsequent to the date of the Pricing Amendment
relating to the Designated Securities, no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act;
(g) Subsequent to the date of the Pricing Amendment
relating to the Designated Securities, there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
general moratorium on commercial banking activities in New York
declared by either federal or New York State authorities; or (iii) the
engagement by the United States in hostilities that have resulted in
the declaration, on or after the date of such Pricing Agreement, of a
national emergency or war if the effect of any such event specified in
this clause (iii), in the reasonable judgment of the Representatives,
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and
in the manner contemplated in the Prospectus, as amended or
supplemented; and
(h) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities, certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of
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<PAGE> 15
Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement
or the Prospectus, as amended or supplemented, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement
or the Prospectus, as amended or supplemented, in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter expressly for use therein; provided further, that the Company
shall not be liable to the Underwriters under the indemnity agreement in this
subsection (a) with respect to any Preliminary Prospectus or any preliminary
prospectus supplement to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or the Prospectus
as then amended or supplemented if the Company had previously furnished copies
thereof to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement or the Prospectus, as amended or supplemented, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement or the Prospectus, as amended
or supplemented, in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Underwriter expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim.
-15-
<PAGE> 16
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim with respect thereto is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability that it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and, after
notice from the indemnifying party to the such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering of
such Designated Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand
and the Underwriters of the Designated Securities on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
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 such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions with respect thereto)
referred to above in
-16-
<PAGE> 17
this subsection (d) shall be deemed to include 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
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the applicable
Designated Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability that the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
that the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities that it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained herein.
If within thirty-six hours after such default by any Underwriter, the
Representatives do not arrange for the purchase of such Designated Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed periods, the Representatives
notify the Company that they have so arranged for the purchase of such
Designated Securities, or the Company notifies the Representatives that it has
so arranged for the purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus that, in the opinion
of the Representatives, may thereby be made necessary. The term "Underwriter"
as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to this
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives or the Company as provided in subsection (a) above, the
aggregate principal amount of such
-17-
<PAGE> 18
Designated Securities that remains unpurchased does not exceed one-eleventh of
the aggregate principal amount of the Designated Securities, then the Company
shall have the right to require each nondefaulting Underwriter to purchase the
principal amount of Designated Securities that such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated Securities
and, in addition, to require each nondefaulting Underwriter to purchase its pro
rata share (based on the principal amount of Designated Securities that such
Underwriter agreed to purchase under such Pricing Agreement) of the Designated
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities that remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require nondefaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any nondefaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Section 6 and Section 8 hereof; but, if for any
other reason Designated Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through
the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof; and further provided,
however, that notwithstanding the foregoing, the Company shall have no
obligation to reimburse the Underwriters as described above if Designated
Securities are not delivered by or on behalf of the Company as provided herein
because of the failure of counsel for the Underwriters to furnish the opinion
or opinions
-18-
<PAGE> 19
contemplated by Section 7(b) hereof, or because of the occurrence of any of the
events described in Section 7(f) or (g) hereof. The Company shall not in any
event be liable to any Underwriter for loss of anticipated profits from the
transactions contemplated by this Agreement, the Pricing Agreement or
otherwise.
12. In all dealings hereunder, the Representatives shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Representatives, as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Company set forth in
the Registration Statement, Attention: Vice President, Chief Legal Officer and
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any rights under or by
virtue of this Agreement or any Pricing Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement and each Pricing Agreement shall be construed
in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
[Remainder of page intentionally left blank.]
-19-
<PAGE> 20
If the foregoing is in accordance with your understanding, please sign
and return to us two (2) counterparts hereof.
Very truly yours,
CENTEX CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
-20-
<PAGE> 21
ANNEX I
PRICING AGREEMENT
[Name and address of Representative(s)]
_________________, 199___
Dear Sirs:
Centex Corporation (the "Company") proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated
__________________, 199__ (the "Underwriting Agreement"), to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Pricing Agreement to the
same extent as if such provisions had been set forth in full herein, and each
of the representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty with respect to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus, as amended or supplemented,
relating to the Designated Securities that are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed, or in the case of
a supplement, transmitted for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
<PAGE> 22
If the foregoing is in accordance with your understanding, please sign
and return to us two (2) counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this Pricing Agreement and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that your
acceptance of this Pricing Agreement on behalf of each of the Underwriters is
or will be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
CENTEX CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Accepted as of the date hereof
at Dallas, Texas:
[Name and address of Representative(s)]
By:
---------------------------
---------------------------
-2-
<PAGE> 23
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount of
Securities
to be
Underwriters Purchased
------------ ---------
<S> <C>
$
--------------
Total . . . . . . . . . . . . . . . . . . . . . . $
==============
</TABLE>
<PAGE> 24
SCHEDULE II
Title of Designated Securities:
[____]%
[Senior/Subordinated Debt Securities] due ____________
Aggregate principal amount:
$__________________
Price to Public:
% of the principal amount of the Designated Securities,
plus accrued interest from ___________ to ____________ [and accrued
amortization, if any, from ___________ to _____ _____]
Purchase Price by Underwriters:
[____]% of the principal amount of the Designated Securities,
plus accrued interest from ___________ to ____________ [and accrued
amortization, if any, from ___________ to _____ ____]
Specified funds for payment of purchase price:
Wire transfer of immediately available funds
Indenture:
[Indenture, dated as of May 1, 1991, between the Company and Chemical
Bank, as Trustee -- for Senior Debt Securities]
[Indenture, dated as of March 12, 1987, between the Company and Texas
Commerce Bank National Association, as Trustee -- for Subordinated Debt
Securities]
Maturity:
Interest Rate:
[_____]%
-1-
<PAGE> 25
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[Provisions for redemption]
Sinking Fund Provisions:
[The Designated Securities are entitled to the benefit of a sinking fund
to retire $________ principal amount of Designated Securities on
_____________ in each of the years _____ through _______ at 100% of their
principal amount plus accrued interests] [, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional $__________________ principal amount of Designated Securities
in the years _______ through ______ at 100% of their principal amount
plus accrued interest].
Time of Delivery:
Closing Location:
Name and address of Representatives:
Designated Representatives:
Address for Notices, etc.:
Book-Entry Provisions:
[Provisions for book-entry registration
of the Designated Securities]
[Other terms]:
-2-
<PAGE> 26
ANNEX II
DESCRIPTION OF COMFORT LETTER
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them and
included or incorporated by reference in the Registration Statement or
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder;
and, if applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data,
pro forma financial information and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies
of which have been furnished to the representatives of the Underwriters
(the "Representatives");
(iii) In their opinion, the unaudited selected financial
information with respect to the consolidated results of operations and
financial position of the Company for the five most recent fiscal years
included in the Prospectus and included or incorporated by reference in
Item 6 of the Company's Annual Report on Form 10-K for the most recent
fiscal year agrees with the corresponding amounts (after restatement
where applicable) in the audited consolidated financial statements for
such five fiscal years that were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of changes in financial
-1-
<PAGE> 27
position included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related published rules and
regulations thereunder or are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with the basis for the audited consolidated statements
of income, consolidated balance sheets and consolidated
statements of changes in financial position included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements that were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case that were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or net assets or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included
or included or incorporated by reference in the
-2-
<PAGE> 28
Prospectus, except in each case for changes, increases or
decreases that the Prospectus discloses have occurred or may
occur or that are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in clause (E),
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases that the Prospectus
discloses have occurred or may occur or that are described in
such letter; and
(v) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not constituting an examination
in accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives that are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for
such Designated Securities.
-3-
<PAGE> 1
EXHIBIT 4.3
[Form of July 21, 1995]
_____________________________________________________
CENTEX CORPORATION
Issuer
AND
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
________________________
I N D E N T U R E
Dated as of ______________, 199__
________________________
SENIOR DEBT SECURITIES
(Issuable in Series)
_____________________________________________________
<PAGE> 2
TIE-SHEET
of provisions of the Trust Indenture Act of 1939 with the Indenture, dated as
of ______________, 199_, between Centex Corporation and Texas Commerce Bank
National Association, as Trustee:
<TABLE>
<CAPTION>
Section Section
of Act of Indenture
- ------ ------------
<S> <C> <C>
310 (a)(1)................................... 8.09
(a)(2)................................... 8.09
(a)(3)................................... Not applicable
(a)(4)................................... Not applicable
(b)...................................... 8.08 and 8.10(b)
(c)...................................... Not applicable
311 (a)...................................... 8.13
(b)...................................... 8.13
(c)...................................... Not applicable
312 (a)...................................... 6.01 and 6.02(a)
(b)...................................... 6.02(b)
(c)...................................... 6.02(c)
313 (a)...................................... 6.04(a)
(b)(1)................................... Not applicable
(b)(2)................................... 6.04(b)
(c)...................................... 6.04(c)
(d)...................................... 6.04(d)
314 (a)(1)................................... 6.03(a)
(a)(2)................................... 6.03(b)
(a)(3)................................... 6.03(c)
(b)...................................... Not applicable
(c)(1)................................... 15.07
(c)(2)................................... 15.07
(c)(3)................................... Not applicable
(d)...................................... Not applicable
(e)...................................... 15.07
315 (a)(1)................................... 8.01(a)(1)
(a)(2)................................... 8.01(a)(2)
(b)...................................... 7.07
(c)...................................... 8.01
(d)...................................... 8.01
(e)...................................... 7.08
316 (a)(1)................................... 7.01 and 7.06
(a)(2)................................... Omitted
(a) last sentence........................ 9.04
(b)...................................... 7.04
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Section Section
of Act of Indenture
- ------ ------------
<S> <C> <C>
317 (a)...................................... 7.02
(b)...................................... 5.05
318 (a)...................................... 15.09
</TABLE>
_______________
This tie-sheet is not a part of the Indenture as executed.
-ii-
<PAGE> 4
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
PARTIES................................................ 1
PRELIMINARY STATEMENT.................................. 1
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Certain terms defined; other terms
defined in Trust Indenture Act of
1939 or by reference therein in
Securities Act of 1933, as
amended, to have meanings therein
assigned............................... 1
Authorized Newspaper................... 1
Board of Directors..................... 2
Business Day........................... 2
Certificate of a Firm of Independent
Public Accountants................... 2
Company................................ 2
Corporate Trust Office................. 2
Event of Default; default.............. 2
Holder................................. 3
Indenture.............................. 3
Officers' Certificate.................. 3
Opinion of Counsel..................... 3
Responsible Officer.................... 3
Senior Debt Security;
"outstanding" with
reference to Senior
Debt Securities...................... 4
Senior Debt Security Register;
Senior Debt Security
Registrar............................ 4
Series................................. 4
Series Supplement or Supplement........ 4
Trust Indenture Act of 1939............ 5
Trustee................................ 5
</TABLE>
__________________________________
*The Table of Contents, comprising pages i to xii inclusive, is not part
of the Indenture.
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE TWO.
ISSUE, DESCRIPTION, FORM, EXECUTION,
REGISTRATION OF TRANSFER AND
EXCHANGE OF SENIOR DEBT SECURITIES.
SECTION 2.01. Form of Senior Debt Securities
and Certificate of Authentication.... 5
SECTION 2.02. Amount unlimited; Senior Debt
Securities issuable in Series;
Certain related provisions........... 10
SECTION 2.03. Authentication and delivery of
Senior Debt Securities............... 11
SECTION 2.04. Date of Senior Debt Securities
and denominations.................... 11
SECTION 2.05. Execution of Senior Debt
Securities........................... 12
SECTION 2.06. Exchange of Senior Debt
Securities........................... 13
Senior Debt Securities to be
accompanied by proper instruments
of transfer.......................... 13
Charges upon exchange, registration
or transfer or registration of
Senior Debt Securities............... 13
Restrictions on issue, registration
of transfer or exchange at certain
times................................ 13
SECTION 2.07. Temporary Senior Debt
Securities........................... 14
SECTION 2.08. Mutilated, destroyed, lost or
stolen Senior Debt
Securities........................... 14
SECTION 2.09. Cancellation of surrendered
Senior Debt Securities............... 15
SECTION 2.10. Provisions of the Indenture and
Senior Debt Securities
for the sole benefit of the
parties, holders of Senior
Debt Securities...................... 15
</TABLE>
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ARTICLE THREE.
PRIORITY OF SENIOR DEBT SECURITIES.
SECTION 3.01. Confirmation of subordination of
certain prior debt................... 16
ARTICLE FOUR.
REDEMPTION OF SENIOR DEBT
SECURITIES - SINKING FUND.
SECTION 4.01. Redemption prices of Senior
Debt Securities...................... 16
Restriction on redemption of
Senior Debt Securities............... 16
SECTION 4.02. Mailing of notice of redemption........ 17
Selection of Senior Debt
Securities in case less than all
Senior Debt Securities
to be redeemed......................... 17
SECTION 4.03. When Senior Debt Securities
called for redemption become due
and payable............................ 18
SECTION 4.04. Sinking Fund; amounts and payment dates 18
SECTION 4.05. Credits against Sinking Fund payments.. 19
SECTION 4.06. Certificates and Senior Debt
Securities to be delivered to the
Trustee................................ 19
SECTION 4.07. Cash to be delivered to the Trustee.... 20
SECTION 4.08. Application of Sinking Fund payments
to redemption of Senior
Debt Securities...................... 20
SECTION 4.09. Manner of redeeming Senior
Debt Securities...................... 20
Sinking Fund redemption price.......... 21
SECTION 4.10. Application of Sinking Fund............ 21
SECTION 4.11. Cancellation and destruction of
redeemed Senior Debt
Securities........................... 21
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SECTION 4.12. Sinking Fund moneys to be held as
security during continuance of
Event of Default; exceptions......... 21
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of principal of and premium,
if any, and interest on
Senior Debt Securities............... 22
SECTION 5.02. Maintenance of office or agency for
registration, registration of
transfer, exchange and payment of
Senior Debt Securities............... 22
SECTION 5.03. Prohibition of extension of claims for
interest............................. 22
SECTION 5.04. Appointment to fill a vacancy in the
office of Trustee.................... 22
SECTION 5.05. (a) Duties of paying agent............ 22
(b) Company as paying agent........... 23
(c) Turnover to Trustee by paying
agent or Company................ 23
(d) Holding sums in trust............. 23
SECTION 5.06. Company to furnish annual compliance
certificate.......................... 23
ARTICLE SIX.
LISTS OF HOLDERS OF SENIOR DEBT
SECURITIES AND REPORTS BY THE
COMPANY AND THE TRUSTEE.
SECTION 6.01. Company to furnish Trustee information as
to names and addresses of
holders of Senior Debt
Securities........................... 24
SECTION 6.02. (a) Trustee to preserve information
as to names and addresses
of holders of Senior
Debt Securities................. 24
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Trustee may destroy list of
holders of Senior
Debt Securities on
certain conditions.............. 24
(b) Trustee to make information as
to names and addresses of
holders of Senior
Debt Securities available
to "applicants" or mail
communications to holders
of Senior Debt
Securities in certain
circumstances................... 24
Procedure if Trustee elects not to
make information available to
"applicants".................... 25
(c) Company and Trustee not accountable
for disclosure of information... 25
SECTION 6.03. (a) Annual and other reports to be
filed by Company with Trustee... 25
(b) Additional information and reports
to be filed with Trustee and
Securities and Exchange
Commission...................... 26
(c) Summaries of information and
reports to be transmitted
by Company to holders of
Senior Debt Securities.......... 26
SECTION 6.04. (a) Trustee to transmit reports
to holders of Senior
Debt Securities................. 26
(b) Trustee to transmit certain
further reports to holders
of Senior Debt
Securities...................... 27
(c) To which holders of
Senior Debt Securities
reports are to be mailed........ 28
(d) Copies of reports to be filed
with stock exchanges and
Securities and Exchange
Commission...................... 28
</TABLE>
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ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS
OF SENIOR DEBT SECURITIES
IN EVENT OF DEFAULT.
SECTION 7.01. Events of Default defined.............. 28
Acceleration of maturity upon Event
of Default........................... 29
Waiver of default and rescission of
declaration of acceleration.......... 30
Restoration of former position and
rights upon curing of all defaults... 30
SECTION 7.02. Covenant of Company to pay to Trustee
whole amount due on Senior
Debt Securities on default in
payment of interest.................. 30
Trustee may recover judgment for
whole amount due on Senior
Debt Securities on failure
of Company to pay.................... 31
Filing of proof of claim by Trustee in
bankruptcy, reorganization,
receivership, or other judicial
proceedings.......................... 31
Trustee may enforce rights of action
and assert claims without
possession of Senior
Debt Securities...................... 31
Trustee may enforce rights vested in it
by Indenture by appropriate judicial
proceedings.......................... 32
SECTION 7.03. Application of moneys collected by
Trustee.............................. 32
SECTION 7.04. Limitation on suits by holders of
Senior Debt Securities............... 33
SECTION 7.05. Remedies cumulative.................... 33
Delay or omission in exercise of rights
not a waiver of default.............. 34
SECTION 7.06. Rights of holders of majority in
principal amount of Senior
Debt Securities of a Series to
direct Trustee and to waive
default.............................. 34
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SECTION 7.07. Trustee to give notice of defaults
known to it, but may withhold in
certain circumstances................ 34
SECTION 7.08. Requirement of an undertaking to pay
costs in certain suits under the
Indenture or against the Trustee..... 35
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Upon Event of Default occurring and
continuing, Trustee shall exercise
powers vested in it, and use same
degree of care and skill in their
exercise, as a prudent man would
use.................................. 35
Trustee not relieved from liability
for negligence or willful
misconduct except as provided in
this Section......................... 36
(a) Prior to Event of Default and after
the curing of all Events of
Default which may have occurred
(1) Trustee not liable except for
performance of duties
specifically set forth..... 36
(2) In absence of bad faith,
Trustee may conclusively
rely on certificates or
opinions furnished it
hereunder, subject to duty
to examine the same if
specifically required to be
furnished to it........... 36
(b) Trustee not liable for error of
judgment made in good faith by
responsible officer unless
Trustee negligent............... 36
(c) Trustee not liable for action
or non-action in accordance
with direction of holders of
majority in principal amount of
Senior Debt Securities
of a Series...................... 36
Trustee not required to expend own funds 36
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SECTION 8.02. Subject to provisions of Section 8.01:
(a) Trustee may rely on documents
believed genuine and properly
signed or presented............. 37
(b) Sufficient evidence by certain
instruments provided for........ 37
(c) Trustee may act on Opinion of
Counsel......................... 37
(d) Trustee may require indemnity
from holders of Senior
Debt Securities................. 37
(e) Trustee not liable for action in
good faith believed to be
authorized...................... 37
(f) Trustee not bound to make any
investigation of any document... 37
(g) Trustee may act through agent..... 38
SECTION 8.03. Trustee not liable for recitals in
Indenture or in Senior Debt
Securities........................... 38
No representations by Trustee as to
validity of Indenture or of
Senior Debt Securities............... 38
Trustee not accountable for use
of Senior Debt Securities
or proceeds.......................... 38
SECTION 8.04. Trustee, paying agent or Senior
Debt Security Registrar may own
Senior Debt Securities............... 38
SECTION 8.05. Moneys received by Trustee to be
held in trust without interest....... 38
SECTION 8.06. Trustee entitled to compensation,
reimbursement and indemnity.......... 38
Obligations to Trustee to be secured
by lien prior to Senior Debt
Securities........................... 38
SECTION 8.07. Right of Trustee to rely on Officers'
Certificate where no other evidence
specifically prescribed.............. 39
SECTION 8.08. (a) Trustee acquiring conflicting
interest to eliminate conflict
or resign....................... 40
(b) Notice to holders of Senior
Debt Securities in case of
failure to comply with
subsection (a).................. 40
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(c) Definition of conflicting interest 40
(d) Definition of certain terms....... 44
(e) Calculations of percentage of
securities...................... 45
SECTION 8.09. Requirements for eligibility of Trustee 46
SECTION 8.10. (a) Resignation of Trustee............ 46
(b) Removal of Trustee by Company
or court on application of
holders of Senior
Debt Securities................. 46
(c) Removal of Trustee by Company..... 47
(d) Removal of Trustee by holders of
majority in principal amount of
Senior Debt Securities.......... 48
(e) Time when resignation or removal
of Trustee effective............ 48
(f) Company to deliver notice of
appointment of successor trustee 48
SECTION 8.11. Acceptance by successor to Trustee..... 48
SECTION 8.12. Successor to Trustee by merger,
consolidation or succession to
business............................. 49
SECTION 8.13. (a) Limitations on rights of Trustee
as a creditor to obtain payment
of certain claims, within three
months prior to default or during
default, or to realize on property
as such creditor thereafter..... 50
(b) Certain creditor relationships
excluded........................ 52
(c) Definition of certain terms....... 53
ARTICLE NINE.
CONCERNING THE HOLDERS OF
SENIOR DEBT SECURITIES.
SECTION 9.01. Evidence of action by holders of
Senior Debt Securities............... 54
SECTION 9.02. Proof of execution of instruments
and of holding of Senior
Debt Securities...................... 54
SECTION 9.03. Who may be deemed owners of
Senior Debt Securities............... 55
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SECTION 9.04. Senior Debt Securities owned
by Company or controlled or
controlling companies disregarded
for certain purposes................. 55
SECTION 9.05. Instruments executed by holders
of Senior Debt Securities
bind future holders.................. 56
ARTICLE TEN.
MEETINGS OF HOLDERS OF
SENIOR DEBT SECURITIES.
SECTION 10.01. Purposes for which meetings may be
called............................... 56
SECTION 10.02. Manner of calling meetings............. 57
SECTION 10.03. Call of meetings by Company or
holders of Senior Debt
Securities........................... 57
SECTION 10.04. Who may attend and vote at meetings.... 57
SECTION 10.05. Regulations may be made by Trustee..... 57
Conduct of the meeting................. 58
Voting rights-adjournment.............. 58
SECTION 10.06. Manner of voting at meetings and
record to be kept.................... 58
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Purposes for which supplemental
indentures may be entered into
without consent of holders
of Senior Debt Securities............ 59
SECTION 11.02. Modification of Indenture with
consent of holders of majority in
principal amount of Senior
Debt Securities of a Series.......... 60
SECTION 11.03. Effect of supplemental indentures...... 61
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SECTION 11.04. Senior Debt Securities may
bear notation of changes by
supplemental indentures.............. 61
ARTICLE TWELVE.
CONSOLIDATION, MERGER,
SALE OR CONVEYANCE.
Section 12.01. Consolidations and mergers of Company
and conveyances permitted............ 62
Assumption of obligations of Company
by successor company or transferee... 62
SECTION 12.02. Rights and duties of successor
corporation.......................... 62
Appropriate changes may be made in form
of Senior Debt Securities............ 63
SECTION 12.03. Opinion of Counsel..................... 63
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS.
SECTION 13.01. Satisfaction and discharge of Indenture 63
SECTION 13.02. Application by Trustee of funds
deposited for payment of
Senior Debt Securities............... 64
SECTION 13.03. Repayment of moneys held by paying
agent................................ 65
SECTION 13.04. Repayment of moneys held by Trustee.... 65
SECTION 13.05. Reinstatement.......................... 65
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 14.01. Incorporators, stockholders, officers
and directors of Company exempt
from individual liability............ 66
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ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Successors and assigns of Company bound
by Indenture......................... 66
SECTION 15.02. Acts of board, committee or officer
of successor corporation valid....... 66
SECTION 15.03. Surrender of powers by Company......... 66
SECTION 15.04. Service of required notices or demands. 67
SECTION 15.05. Notice to holders of Senior
Debt Securities...................... 67
SECTION 15.06. Indenture and Senior Debt
Securities to be construed
in accordance with the
laws of the State of Texas........... 67
SECTION 15.07. Officers' Certificate and Opinion of
Counsel to be furnished upon
applications or demands by the
Company.............................. 67
Statements to be included in each
certificate or opinion with respect
to compliance with a condition or
covenant............................. 68
SECTION 15.08. Payments due on Sundays and holidays.. 68
SECTION 15.09. Provisions required by Trust Indenture
Act of 1939 to control............... 68
SECTION 15.10. Severability........................... 68
SECTION 15.11. Indenture may be executed in
counterparts......................... 68
SECTION 15.12. Computation of interest................ 68
SECTION 15.13. Acceptance of trusts by Trustee........ 69
TESTIMONIUM....................................................... 70
SIGNATURES........................................................ 70
</TABLE>
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<PAGE> 16
INDENTURE, dated as of ______________, 199_, between CENTEX
CORPORATION, a corporation duly organized and existing under the laws of the
State of Nevada (hereinafter sometimes referred to as the "Company"), and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, a national banking association organized
under the laws of the United States of America (hereinafter sometimes referred
to as the "Trustee").
PRELIMINARY STATEMENT
The Company has duly authorized the execution and delivery of this
Indenture to provide for one or more series of Senior Debt Securities, issuable
as provided in this Indenture. Each series of such Senior Debt Securities will
be issued only under a separate Series Supplement to this Indenture duly
executed and delivered by the Company and the Trustee and limited to amounts
therein prescribed. All covenants and agreements made by the Company herein
are for the benefit and security of the holders of Senior Debt Securities. The
Company is entering into this Indenture, and the Trustee is accepting the trust
created hereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. The terms defined in this Section 1.01 (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939 or which are by reference therein defined in the Securities Act of 1933,
as amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed.
Authorized Newspaper:
The term "authorized newspaper" shall mean a newspaper printed in the
English language and customarily published at least once a day for at least
five days in each calendar week, whether or not published on Saturdays, Sundays
or legal holidays, and of general circulation in the Borough of Manhattan, The
City of New York. Whenever under the provisions of this Indenture two or more
publications of a notice or other communication are required or permitted, such
publications may be in the same or different newspapers.
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Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Company and duly authorized committees of such Board.
Business Day:
The term "business day" shall mean any day except a Saturday, a Sunday
or a day on which banking institutions are legally authorized to close in The
City of New York, New York, or The City of Dallas, Texas.
Certificate of a Firm of Independent Public Accountants:
The term "Certificate of a Firm of Independent Public Accountants"
shall mean a certificate signed by an individual, partnership or corporation
engaged in accounting work who may be the accountants regularly employed by the
Company. Each such certificate shall include the statements provided for in
Section 15.07, if and to the extent required by the provisions thereof.
Company:
The term "Company" shall mean CENTEX CORPORATION, a Nevada
corporation, and, subject to the provisions of Article Twelve, shall also
include its successors and assigns.
Corporate trust office:
The term "corporate trust office" of the Trustee shall mean an office
or agency of the Trustee in the City of Dallas, Texas, designated by the
Trustee, from time to time, as the Trustee's corporate trust office for
purposes of this Indenture, which office at the date of the execution of this
Indenture is located at Texas Commerce Bank National Association, 1900 Pacific
Avenue, 16th Floor, Dallas, Texas 75201.
Event of Default; default:
The term "Event of Default" shall mean any event specified in Section
7.01, continued for the period of time, if any, and after the giving of notice,
if any, therein designated.
Unless the context otherwise requires, the term "default" shall mean
any occurrence which is, or with notice or the lapse of time or both would
become, an Event of Default; provided that any occurrence which would become an
Event of Default pursuant to Section 7.01(c) hereof shall not be deemed a
default (but may nonetheless constitute an Event of Default upon notice and
lapse of time as provided in Section 7.01(c)) for purposes of the Indenture
until the expiration of five days after such occurrence shall first become
known, or in the exercise of reasonable care should become known, to an officer
of the Company. Notwithstanding the proviso clause of the immediately
preceding sentence, for purposes of
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Section 8.08 hereof, the term "default" shall mean any occurrence which is, or
with notice of the lapse of time or both would become, an Event of Default.
Holder:
The term "holder", "holder of Senior Debt Securities", or other
similar term, shall mean any person in whose name a Senior Debt Security shall
at the time be registered in the Senior Debt Security Register kept for that
purpose.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, as so amended or
supplemented.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman of the Board, the President or any Vice President and by the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Company. Each such certificate shall include the statements
provided for in Section 15.07, if and to the extent required by the provisions
thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel who shall be satisfactory to the Trustee and may be counsel to
the Company. Each such opinion shall include the statements provided for in
Section 15.07, if and to the extent required by the provisions thereof.
Responsible Officer:
The term "responsible officer" when used with respect to the Trustee
shall mean the chairman or the vice-chairman of the board of directors, the
chairman of the executive committee of the board of directors, the president,
any vice president, any second or assistant vice president, the cashier, any
assistant cashier, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any senior trust officer or trust officer, or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
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Senior Debt Security; "outstanding" with reference to Senior Debt Securities:
The term "Senior Debt Security" or "Senior Debt Securities" shall mean
a Senior Debt Security or Senior Debt Securities, as the case may be,
consisting of bonds, debentures, notes and/or other unsecured evidences of
indebtedness, authenticated and delivered under this Indenture.
The term "outstanding", when used with reference to Senior Debt
Securities, shall, subject to the provisions of Section 9.04, mean, as of any
particular time, all Senior Debt Securities authenticated and delivered by the
Trustee under this Indenture, except:
(a) Senior Debt Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(b) Senior Debt Securities for the payment or redemption for
which moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent), provided
that, if such Senior Debt Securities are to be redeemed, notice of
such redemption shall have been given as in Article Four provided or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Senior Debt Securities in lieu of or in substitution for
which other Senior Debt Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.08.
Senior Debt Security Register; Senior Debt Security Registrar:
The terms "Senior Debt Security Register" and "Senior Debt Security
Registrar" shall have the respective meanings specified in Section 2.06.
Series:
The term "Series" shall mean a separate series of Senior Debt
Securities issued pursuant to this Indenture and the related Series Supplement.
Series Supplement or Supplement:
The term "Series Supplement" or "Supplement" shall mean an indenture
supplemental to this Indenture, in substantially the form attached hereto as an
exhibit, that authorizes a particular Series.
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Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" (except as herein otherwise
expressly provided or unless the context otherwise requires) shall mean the
Trust Indenture Act of 1939 as in force at the date of this Indenture as
originally executed.
Trustee:
The term "Trustee" shall mean Texas Commerce Bank National
Association, and, subject to the provisions of Article Eight, shall also
include its successors and assigns.
ARTICLE TWO.
ISSUE, DESCRIPTION, FORM, EXECUTION, REGISTRATION OF TRANSFER
AND EXCHANGE OF SENIOR DEBT SECURITIES.
SECTION 2.01. The Senior Debt Securities and the Trustee's
certificate of authentication are to be substantially in the forms set forth in
this Section 2.01, with such appropriate insertions, omissions, substitutions,
amendments, changes and other variations as are required or permitted by this
Indenture or any Series Supplement, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which the
Senior Debt Securities may be listed or as may, consistently herewith, be
determined by the officers executing such Senior Debt Securities as evidenced
by their execution of the Senior Debt Securities.
The definitive Senior Debt Securities shall be printed, lithographed
or engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by any Series
Supplement or the rules of any securities exchange on which the Senior Debt
Securities may be listed, all as determined by the officers executing such
Senior Debt Securities, as evidenced by their execution of such Senior Debt
Securities.
The form of Senior Debt Securities and the Trustee's certificate of
authentication are to be substantially in the following forms, respectively:
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[FORM OF FACE OF SENIOR DEBT SECURITY]
No. ____________________ [$]____________________
CENTEX CORPORATION
[SENIOR DEBT SECURITY]
CENTEX CORPORATION, a corporation duly organized and existing under
the laws of the State of Nevada (herein referred to as the "Company"), for
value received, hereby promises to pay to
____________________________________________ _ or registered assigns, the
principal sum of _____________________ [Currency of Issue and Payment] on
__________________ , ____, in such coin or currency of the [Country Whose
Currency is Designated] as at the time of payment is legal tender for the
payment of public and private debts, and to pay interest on said principal sum
at the rate per annum specified in the title of this [Senior Debt Security],
with respect to interest accrued from [insert accrual date] to the date of the
current interest payment, to the registered holder hereof as of the close of
business on the ________ day of the month preceding the month in which an
interest payment is due, in like coin or currency, all at any office or agency
of the Company to be maintained by the Company pursuant to Section 5.02 of the
Indenture, which at all times shall include an office or agency in the City of
Dallas, Texas, such interest payments to be made, except as otherwise provided
in the Indenture hereinafter referred to, [insert interest frequency] on
[insert payment dates], in each year, commencing ______ _____, 199__, until
payment of said principal sum has been made or duly provided for; provided,
however, that payment of interest may be made at the option of the Company by
check mailed on or before such payment date to the address of the person
entitled thereto as such address shall appear on the Senior Debt Security
Register.
This [Senior Debt Security] shall be deemed to be a contract made
under the laws of the State of Texas, and for all purposes shall be construed
in accordance with the laws of said State.
Additional provisions of this [Senior Debt Security] are contained on
the reverse hereof and such provisions shall for all purposes have the same
effect as though fully set forth at this place.
This [Senior Debt Security] shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been
signed by the Trustee under the Indenture.
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IN WITNESS WHEREOF, CENTEX CORPORATION has caused this instrument to
be signed in its corporate name by the facsimile signature of its President or
a Vice President and by its Secretary or an Assistant Secretary by his
signature or a facsimile thereof, and a facsimile of its corporate seal to be
affixed hereunto or imprinted hereon.
Dated:
CENTEX CORPORATION
[Seal]
By ________________________________
[Title]
ATTEST:
__________________________
[Title]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [Senior Debt Securities] to which reference is made
in the within-mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
By ________________________________
Authorized Signature
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[FORM OF REVERSE OF SENIOR DEBT SECURITY]
CENTEX CORPORATION
This [Senior Debt Security] is one of a duly authorized issue of
Senior Debt Securities of the Company issued and to be issued in one or more
Series, and this [Senior Debt Security] is one of the Series of Senior Debt
Securities designated as its [Senior Debt Securities] (herein referred to as
the [Senior Debt Securities]), limited to the aggregate principal amount of
_____________________________________________ Million [Currency of Issue and
Payment] ([$]_ _________________), all issued or to be issued under and
pursuant to an indenture dated as of __________________, 199__ (herein referred
to as the "Indenture"), duly executed and delivered by the Company to Texas
Commerce Bank National Association (referred to herein as the "Trustee"), to
which Indenture and all indentures supplemental thereto (including the Series
Supplement dated as of ________, 199_ which authorizes the [Senior Debt
Securities]) reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Senior Debt Securities of each
particular Series and the terms upon which the Senior Debt Securities of each
Series are, and are to be, authenticated and delivered. All terms used in this
Senior Debt Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture. As provided in the Indenture, the Senior
Debt Securities are issuable in Series which may vary as in the Indenture
provided or permitted.
[The indebtedness evidenced by the [Senior Debt Securities] is, to the
extent and in the manner provided in the Indenture and the Series Supplement,
senior in right of payment to certain indebtedness of the Company.]
In case an Event of Default shall have occurred and be continuing with
respect to the [Senior Debt Securities], the principal hereof may be declared,
and upon such declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the Indenture. The
Indenture provides that in certain events such declaration and its consequences
may be waived by the holders of a majority in aggregate principal amount of the
[Senior Debt Securities] then outstanding. An Event of Default with respect to
the Senior Debt Security of any other Series issued under the Indenture,
including the failure to make any payment of principal or interest with respect
thereto when and as due, will not be an Event of Default with respect to the
[Senior Debt Securities].
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the [Senior Debt Securities] at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions
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<PAGE> 24
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the
rights of the holders of the [Senior Debt Securities]; provided, however, that
no such supplemental indenture shall (i) extend the fixed maturity of any
[Senior Debt Securities], or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable on the redemption thereof, without the consent of the holder of each
[Senior Debt Security] so affected, or (ii) reduce the aforesaid percentage of
[Senior Debt Securities], the consent of the holders of which is required for
any such supplemental indenture, without the consent of the holders of all
[Senior Debt Securities] then outstanding. It is also provided in the
Indenture that the holders of a majority in aggregate principal amount of the
[Senior Debt Securities] at the time outstanding may on behalf of the holders
of all the [Senior Debt Securities] waive any past default under the Indenture
and its consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the [Senior Debt Securities]. Any such
consent or waiver by the holder of this [Senior Debt Security] (unless revoked
as provided in the Indenture) shall be conclusive and binding upon such holder
and upon all future holders and owners of this [Senior Debt Security] and of
any [Senior Debt Security] issued in exchange or substitution herefor, whether
or not any notation of such consent or waiver is made upon this [Senior Debt
Security].
No reference herein to the Indenture and no provision of this [Senior
Debt Security] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this [Senior Debt Security] at the place, at
the respective times, at the rate and in the currency herein prescribed.
The [Senior Debt Securities] are issuable in registered form in
denominations of $_____ and any integral multiple of $_____.
[As provided in the Indenture, the [Senior Debt Securities] may be
redeemed, at the option of the Company, as a whole or from time to time in part
(otherwise than through the operation of the Sinking Fund), at any time prior
to maturity, upon the notice referred to below, [on terms specified in the
Series Supplement]. Notwithstanding the foregoing, no such redemption may be
made prior to ___________, 19__, directly or indirectly from or in anticipation
of moneys borrowed by the Company at an interest cost which is less than
[interest rate of the [Senior Debt Securities] as specified in the Series
Supplement].]
[The [Senior Debt Securities] are entitled to the benefits of a
Sinking Fund, operation of the provisions of which is required to begin on
_________________, 19__ as provided in the Series Supplement. The [Senior Debt
Securities] are subject to redemption (on notice as set forth below) through
the operation of the Sinking
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<PAGE> 25
Fund at a redemption price equal to the principal amount thereof, together with
accrued interest to the date fixed for redemption.]
Notice of redemption shall be given by mailing by first-class mail a
notice of such redemption not less than 20 nor more than 60 days prior to the
date fixed for redemption to the holders of [Senior Debt Securities] to be
redeemed to their last addresses as they shall appear upon the Senior Debt
Security Register for the [Senior Debt Securities], all as provided in the
Indenture.
Upon due presentment for registration of transfer of this [Senior Debt
Security] at any designated office or agency of the Company to be maintained by
the Company pursuant to Section 5.02 of the Indenture, which at all times shall
include an office or agency in the City of Dallas, Texas, a new [Senior Debt
Security] or [Senior Debt Securities] of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange
herefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection
therewith, and the [Senior Debt Securities] may in like manner be exchanged for
one or more new [Senior Debt Securities] of other authorized denominations but
of the same aggregate principal amount.
The Company, the Trustee, any paying agent and any Senior Debt
Security Registrar (as defined in the Indenture) for the [Senior Debt
Securities] may deem and treat the registered holder hereof as the absolute
owner of this [Senior Debt Security] (whether or not this [Senior Debt
Security] shall be overdue and notwithstanding any notation of ownership or
other writing hereon made by anyone other than the Company or any such Senior
Debt Security Registrar), for the purpose of receiving payment hereof or on
account hereof and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any such Senior Debt Security Registrar shall
be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this [Senior Debt Security], or for any claim
based hereon or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
____________________
SECTION 2.02. The aggregate principal amount of Senior Debt
Securities which may be authenticated and delivered under this Indenture is
unlimited.
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<PAGE> 26
The Senior Debt Securities may, at the election of and as authorized
by the Board of Directors, be issued in one or more Series, and a particular
Series shall be designated as the Board of Directors may determine. Each
Senior Debt Security shall bear upon its face the designation so selected for
the Series for which it belongs. All Senior Debt Securities of the same Series
shall be identical in all respects except for the denominations thereof.
Each Series of Senior Debt Securities shall be created by a Series
Supplement authorized by the Board of Directors in establishing the terms and
provisions of such Series. The several Series may differ as between Series, in
respect of any of the following matters: (1) designation of the Series; (2)
the maximum aggregate principal amount of the Series; (3) accrual date; (4)
interest rate; (5) stated maturity of principal; (6) payment dates; (7)
authorized denominations; (8) currency of issue and payment; (9) redemption
dates; (10) provisions relating to redemption of the related Series on an
optional or mandatory basis by the Company or pursuant to a sinking fund; and
(11) any other provisions expressing or referring to the terms and conditions
upon which the Senior Debt Securities of that Series are to be issued under
this Indenture which are not in conflict with the provisions of this Indenture,
or any provisions expressly amending or modifying the terms of this Indenture
with respect to the Series of Senior Debt Securities to which such Series
Supplement relates. Each Series of Senior Debt Securities shall rank equally
in right of payment with other outstanding Series of Senior Debt Securities.
In authorizing issuance of any Series, the Board of Directors shall
determine and specify all matters in respect of the Senior Debt Securities of
such Series set forth in clauses (1) to (11) inclusive and shall also determine
and specify the form of Senior Debt Securities of such Series.
SECTION 2.03. The Senior Debt Securities shall be executed by the
Company and be delivered to the Trustee for authentication, and the Trustee
shall thereupon, or from time to time thereafter, authenticate and deliver said
Senior Debt Securities to and upon the written order of the Company, signed by
its President or a Vice President and by its Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary, without any further action by the Company.
SECTION 2.04. The Senior Debt Securities shall be issuable as
registered Senior Debt Securities without coupons in denominations prescribed
by the terms of the Series Supplement creating the particular Series. Each
Senior Debt Security shall be dated the date of its authentication, shall bear
interest from the applicable date, and shall be payable on the dates, as
prescribed by the terms of the Series Supplement creating the particular
Series.
The person in whose name any Senior Debt Security is registered at the
close of business on any record date (as hereinafter defined) with respect to
any interest payment date shall be entitled to receive the interest payable on
such interest payment
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<PAGE> 27
date (subject to the provisions of Article Four in the case of any Senior Debt
Security or Senior Debt Securities, or portion thereof, redeemed on a date
subsequent to the record date and on or prior to such interest payment date),
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date, in which case such defaulted
interest shall be paid to the persons in whose names outstanding Senior Debt
Securities are registered on a subsequent special record date established by
notice given by mail by or on behalf of the Company to the holders of Senior
Debt Securities not less than 15 days preceding such special record date, which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment. The term "record date" as used with respect to any
interest payment date shall mean the day of the calendar month prescribed by
the terms of the Series Supplement creating the particular Series preceding the
day on which such interest payment date falls or, in the case of defaulted
interest, the close of business on any special record date established as
hereinabove provided.
The principal of, and premium, if any, and interest on, the Senior
Debt Securities shall be payable at the office or agency of the Company
designated for that purpose in the City of Dallas, Texas, and any other office
or agency of the Company designated for that purpose; provided, however, that
interest may be payable at the option of the Company by check mailed to the
address of the person entitled thereto as such address shall appear on the
Senior Debt Security Register.
SECTION 2.05. The Senior Debt Securities shall be signed manually or
by facsimile signature on behalf of the Company by its President or a Vice
President under its corporate seal attested by the manual or facsimile
signature of its Secretary or an Assistant Secretary. The seal of the Company
may be in the form of a facsimile of the seal of the Company and may be
impressed, affixed, imprinted or otherwise reproduced on the Senior Debt
Securities.
Only such Senior Debt Securities as shall bear thereon a certificate
of authentication substantially in the form hereinabove recited, manually
executed by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Senior Debt Security executed by the Company shall be conclusive evidence
that the Senior Debt Security so authenticated has been duly authenticated and
delivered hereunder.
In case any officer of the Company who shall have signed any of the
Senior Debt Securities shall cease to be such officer before the Senior Debt
Securities so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Senior Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Senior Debt Securities had not ceased to be such officer
of the Company; and any Senior Debt Security may be signed on behalf of
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<PAGE> 28
the Company by such persons as, at the actual date of the execution of such
Senior Debt Security, shall be the proper officers of the Company, although at
the date of the execution of this Indenture any such person was not an officer.
SECTION 2.06. The Senior Debt Securities may be exchanged for a like
aggregate principal amount of Senior Debt Securities of other authorized
denominations of a like Series. Senior Debt Securities to be exchanged shall
be surrendered at any office or agency to be maintained by the Company in
accordance with the provisions of Section 5.02, and the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor the Senior
Debt Security or Senior Debt Securities which the holder making the exchange
shall be entitled to receive.
The Company shall keep or cause to be maintained at said office or
agency a register (herein sometimes referred to as the "Senior Debt Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall register Senior Debt Securities and shall register
the transfer of Senior Debt Securities as in this Article Two provided. For
the purposes of registration, exchange or registration of transfer of Senior
Debt Securities, the Trustee is hereby appointed Senior Debt Security
Registrar. Upon surrender for registration of transfer of any Senior Debt
Security at said office or agency, the Company shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Senior Debt Security or Senior Debt Securities in a like aggregate
principal amount and of a like Series. At all reasonable times the Senior Debt
Security Register shall be open for inspection by the Trustee. No transfer of
any Senior Debt Security shall be valid unless made at said office or agency.
All Senior Debt Securities presented or surrendered for registration
of transfer, exchange, redemption or payment shall (if so required by the
Company or the Trustee) be accompanied by a written instrument or instruments
of transfer, in form satisfactory to the Company and the Trustee, duly executed
by the registered holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Senior Debt Securities, or issue of new Senior Debt Securities in
case of partial redemption, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
For the Senior Debt Securities of a Series which has a redemption
provision, the Company shall not be required (i) to issue, register the
transfer of, or exchange any Senior Debt Security during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
the Senior Debt Securities selected for redemption and ending on the day of
such mailing, or (ii) to register the transfer of or exchange any Senior Debt
Security so selected for redemption in whole or in
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<PAGE> 29
part, except the unredeemed portions of Senior Debt Securities being redeemed
in part.
SECTION 2.07. Pending the preparation of definitive Senior Debt
Securities, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Senior Debt Securities (printed, lithographed or
typewritten), of any denomination, and substantially in the form of the
definitive Senior Debt Securities, but with such omissions, insertions and
variations as may be appropriate for temporary Senior Debt Securities, all as
may be determined by the Company. Temporary Senior Debt Securities may be
issued without a recital of any specific redemption prices as prescribed by the
terms of the Series Supplement creating the particular Series and may contain
such reference to any provisions of this Indenture as may be appropriate.
Every temporary Senior Debt Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Senior Debt Securities.
The Company shall execute and furnish definitive Senior Debt Securities of the
same Series as soon as practicable, and thereupon any or all temporary Senior
Debt Securities of such Series may be surrendered in exchange therefor at the
corporate trust office of the Trustee, and the Trustee shall authenticate and
deliver in exchange for such temporary Senior Debt Securities a like aggregate
principal amount of definitive Senior Debt Securities of the same Series.
Until so exchanged, the temporary Senior Debt Securities of such Series shall
be entitled to the same benefits under this Indenture as definitive Senior Debt
Securities of the same Series authenticated and delivered hereunder.
SECTION 2.08. In case any temporary or definitive Senior Debt
Security shall become mutilated or be destroyed, lost or stolen, the Company in
its discretion may execute, and the Trustee shall authenticate and deliver, a
new Senior Debt Security of a like Series, in exchange and substitution for the
mutilated Senior Debt Security or in lieu of and substitution for the Senior
Debt Security destroyed, lost or stolen. In every case, the applicant for a
substituted Senior Debt Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Senior Debt Security and of the
ownership thereof. The Trustee may authenticate any such substituted Senior
Debt Security and deliver the same upon the request or authorization of the
Company. Upon the issuance of any substituted Senior Debt Security, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith, including fees and expenses of the Trustee. In
case any Senior Debt Security which has matured or is about to mature or has
been called for redemption shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Senior Debt Security
of a like Series, pay
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<PAGE> 30
or authorize the payment of the same (without surrender thereof except in the
case of a mutilated Senior Debt Security) if the applicant for such payment
shall furnish the Company and the Trustee with such security or indemnity as
may be required by them to save each of them harmless, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Senior Debt Security and of
the ownership thereof.
Every substituted Senior Debt Security issued pursuant to the
provisions of this Section 2.08 upon evidence that any Senior Debt Security is
destroyed, lost or stolen shall, with respect to such Senior Debt Security,
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Senior Debt Security shall be found at any time,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Senior Debt Securities of the same
Series duly issued hereunder. All Senior Debt Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Senior Debt Securities, and shall preclude any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.09. All Senior Debt Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be cancelled by it, and no Senior Debt
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. On request of the Company, the Trustee
shall deliver to the Company cancelled Senior Debt Securities held by the
Trustee; provided, however, that the Trustee may at any time destroy any
cancelled Senior Debt Securities and deliver to the Company a certificate of
such destruction. If the Company shall acquire any of the Senior Debt
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Senior Debt Securities
unless and until the same are delivered to the Trustee or surrendered to the
Trustee for cancellation.
SECTION 2.10. Nothing in this Indenture or in the Senior Debt
Securities, expressed or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and the holders of
the Senior Debt Securities of a Series, any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all its covenants, conditions and provisions
being for the sole benefit of the parties hereto and of the holders of the
Senior Debt Securities of such Series.
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<PAGE> 31
ARTICLE THREE.
PRIORITY OF SENIOR DEBT SECURITIES.
SECTION 3.01. Unless otherwise specified in the related Series
Supplement, the Company, for itself, its successors and assigns, confirms and
agrees that, notwithstanding any other provisions of the Senior Debt
Securities, this Indenture or any other agreement under which the Senior Debt
Securities are outstanding, the payment of the principal of, and the premium or
prepayment charge, if any, sinking funds and interest on (i) the Company's
$100,000,000 aggregate principal amount of 8-3/4% Subordinated Debentures due
March 1, 2007, (ii) the Company's $20,000,000 aggregate principal amount of
8.8% Subordinated Debentures due June 30, 2007, (iii) the Company's
$100,000,000 aggregate principal amount of 7-3/8% Subordinated Debentures due
June 1, 2005, and (iv) any other debt securities issued or to be issued under
and pursuant to the Indenture described below in this Section 3.01, are
expressly subordinated, to the extent and in the manner set forth in the
Indenture dated as of March 12, 1987, as supplemented by the Series Supplement
dated as of March 12, 1987, the Series Supplement dated as of June 17, 1987,
and the Series Supplement dated as of June 9, 1995, all between the Company and
Texas Commerce Bank National Association, to the prior payment in full of the
Senior Debt Securities.
ARTICLE FOUR.
REDEMPTION OF SENIOR DEBT SECURITIES - SINKING FUND.
SECTION 4.01. Subject to any contrary provisions set forth in the
related Series Supplement, the Company may, at its option, at any time prior to
maturity, redeem all, or from time to time any part, of the Senior Debt
Securities of a Series, otherwise than through the operation of the Sinking
Fund provided for in this Article Four, at the redemption prices and upon the
conditions, if any, applicable thereto, as permitted by the related Series
Supplement for redemption otherwise than through the operation of the Sinking
Fund. The election of the Company to exercise such option shall be evidenced
by an Officers' Certificate.
Unless otherwise specified in the related Series Supplement, the
Company may not, however, redeem any of the Senior Debt Securities of a Series
pursuant to such option prior to the time prescribed by the terms of the Series
Supplement creating the particular Series, directly or indirectly from or in
anticipation of money borrowed having an interest cost to the Company of less
than the interest rate applicable to the Senior Debt Securities of such Series.
In the event the Company shall optionally redeem any Senior Debt Securities of
a Series prior to such time, the Company shall deliver to the Trustee an
Officers' Certificate stating that such redemption will comply with this
requirement.
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<PAGE> 32
SECTION 4.02. In case the Company shall desire to exercise such right
to redeem all or, as the case may be, any part of the Senior Debt Securities in
accordance with the right reserved so to do, it shall so notify the Trustee in
writing and it shall give notice of such redemption to holders of the Senior
Debt Securities to be redeemed as hereinafter in this Section 4.02 provided.
Notice of redemption shall be given to the holders of Senior Debt
Securities to be redeemed as a whole or in part by mailing by first-class mail
a notice of such redemption not less than 20 nor more than 60 days prior to the
date fixed for redemption to their last addresses as they shall appear upon the
Senior Debt Security Register, but failure to give such notice by mail to the
holders of any Senior Debt Security, or any defect therein, shall not affect
the validity of the proceedings for the redemption of any other Senior Debt
Security.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Senior Debt Securities are to be
redeemed, and shall state that payment of the redemption price of the Senior
Debt Securities to be redeemed will be made at the offices or agencies to be
maintained by the Company in accordance with the provisions of Section 5.02,
upon presentation and surrender of such Senior Debt Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date interest thereon will cease to accrue.
If less than all the Senior Debt Securities are to be redeemed, the notice of
redemption shall specify the Senior Debt Securities to be redeemed as a whole
or in part. In case any Senior Debt Security is to be redeemed in part only,
the notice which relates to such Senior Debt Security shall state the portion
of the principal amount thereof to be redeemed, and shall state that on and
after the redemption date, upon surrender of such Senior Debt Security, a new
Senior Debt Security or Senior Debt Securities of a like Series in principal
amount equal to the unredeemed portion thereof will be issued.
If less than all the Senior Debt Securities of a Series are to be
redeemed, the Company shall give the Trustee at least 45 days' written notice
in advance of the date fixed for redemption as to the aggregate principal
amount of Senior Debt Securities of such Series to be redeemed, and thereupon
the Trustee shall select, by random lot, the particular Senior Debt Securities
of such Series to be redeemed in whole or in part and shall thereafter promptly
notify the Company in writing of the numbers of the Senior Debt Securities of
such Series or portions thereof to be redeemed. The selection of Senior Debt
Securities to be redeemed may provide for the selection of portions (equal to
$1,000 (unless otherwise provided in the related Series Supplement) or a
multiple thereof) of the principal of Senior Debt Securities of a denomination
larger than $1,000 (unless otherwise provided in the related Series
Supplement). The Senior Debt Securities (or portions thereof) so selected
shall be deemed duly designated for redemption for all purposes of this
Indenture. For the purposes of such selection,
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<PAGE> 33
the Company will close the Senior Debt Security Register with respect to such
Series for the purposes of exchange and transfer of Senior Debt Securities of
such Series, for a period not exceeding 15 days.
SECTION 4.03. If the giving of notice of redemption shall have been
completed as above provided, the Senior Debt Securities or portions of Senior
Debt Securities specified in such notice shall become due and payable on the
date and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after such date fixed for redemption (unless the Company shall default in the
payment of such Senior Debt Securities at the redemption price, together with
interest accrued to the date fixed for redemption) interest on the Senior Debt
Securities or portions of Senior Debt Securities so called for redemption shall
cease to accrue. On presentation and surrender of such Senior Debt Securities
at the place stated in said notice, the said Senior Debt Securities shall be
paid and redeemed by the Company at the applicable redemption price, together
with interest accrued to the date fixed for redemption.
Upon presentation of any Senior Debt Security which is redeemed in
part only, the Company shall execute, and the Trustee shall authenticate and
deliver, at the expense of the Company, a new Senior Debt Security or Senior
Debt Securities of a like Series in principal amount equal to the unredeemed
portion of the Senior Debt Security so presented. Prior to the date fixed for
the redemption of any Senior Debt Securities as provided in this Article Four,
the Company shall deposit in trust with the Trustee or with any paying agent,
or if and to the extent that it shall be acting as its own paying agent, the
Company shall set aside, segregate and hold in trust, funds sufficient to
redeem the Senior Debt Securities or portions thereof to be redeemed on such
date, at the applicable redemption price, together with interest accrued to the
date fixed for redemption.
SECTION 4.04. As and for a Sinking Fund for the retirement of Senior
Debt Securities of a Series, if as set forth in the related Series Supplement
the Company so elects to include a Sinking Fund obligation in the terms of the
Senior Debt Securities of a particular Series, the Company covenants that on or
before the applicable date or dates set forth in the Series Supplement, it will
pay to the Trustee a sum in cash sufficient to retire by redemption at the
Sinking Fund redemption price the principal amount of the Senior Debt
Securities of such Series on the date as prescribed by the terms of the Series
Supplement creating the particular Series; provided, however, that in any such
year in which such day is not a business day, such payment shall be made to the
Trustee on the last business day preceding such day. In any year, the Company
may, at its sole option, increase the payment required to be made pursuant to
this Section 4.04 for such year by an amount as prescribed by the terms of such
Series Supplement;
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<PAGE> 34
provided that such increase shall be an integral multiple of $1,000 (unless
otherwise provided in the related Series Supplement).
All cash paid to the Trustee pursuant to the provisions of this
Section 4.04 shall be applied in accordance with the provisions of this Article
Four.
SECTION 4.05. In lieu of making all or any part of any mandatory
Sinking Fund payment as required pursuant to Section 4.04 in cash, the Company
may (a) deliver to the Trustee for cancellation Senior Debt Securities of such
Series theretofore issued and acquired by the Company at any time prior to the
first day of the month next preceding the due date of such payment and not
theretofore made the basis for the reduction of a Sinking Fund payment, or (b)
deliver to the Trustee an Officers' Certificate setting forth the principal
amount of any Senior Debt Securities of such Series theretofore redeemed and
paid pursuant to the provisions of this Article Four (otherwise than through
the operation of the mandatory Sinking Fund), or which have been duly called
for redemption (otherwise than through the operation of the mandatory Sinking
Fund) and the redemption price of which, together with the accrued interest
thereon, shall have been deposited in trust for that purpose, as in this
Article Four provided, and in either case not theretofore made the basis of the
reduction of a Sinking Fund payment; and in each such case the principal amount
of Senior Debt Securities of such Series required by Section 4.04 to be
redeemed shall be reduced to the extent of the principal amount of the Senior
Debt Securities of such Series so delivered or referred to in such certificate.
SECTION 4.06. On or before the applicable date specified in the
Series Supplement of each year in which the Company is obligated to make a
Sinking Fund payment, the Company shall deliver to the Trustee:
(a) An Officer's Certificate stating:
(i) the manner in which the Company will fulfill
its Sinking Fund obligation under this Article Four for that
year;
(ii) the amount of cash, if any, which the Company
will pay to the Trustee on or before the next succeeding
Sinking Fund payment date;
(iii) the principal amount of Senior Debt
Securities of such Series, if any, which the Company will
surrender to the Trustee for cancellation in lieu of the
payment of cash, and that such Senior Debt Securities were
theretofore issued and acquired by
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the Company prior to said Sinking Fund payment date and have
not theretofore been made the basis for the reduction of a
Sinking Fund payment; and
(iv) the principal amount of any Senior Debt
Securities of such Series set forth in a certificate of the
character described in clause (b) of Section 4.05, if any such
certificate is to be concurrently delivered to the Trustee;
(b) The Senior Debt Securities, if any, referred to in Section
4.06(a)(iii); and
(c) The certificate, if any, referred to in Section 4.06(a)(iv).
SECTION 4.07. On or before the applicable date specified in the
Series Supplement or, if such day is not a business day, on the last business
day preceding such date of each year in which the Company is obligated to make
a Sinking Fund payment, the Company shall pay to the Trustee the amount of
cash, if any, payable on or before such Sinking Fund payment date, after giving
credit for the principal amount of any Senior Debt Securities delivered
pursuant to clause (a) of Section 4.05 or referred to in any certificate
delivered pursuant to clause (b) of Section 4.05, in respect of such Sinking
Fund payment date.
SECTION 4.08. In the event that the amount of cash specified in the
certificate given pursuant to Section 4.06, plus the amount, if any, of cash
then held pursuant to Section 4.10, is in excess of one percent of the required
sinking fund payment, the Trustee shall, as soon as practicable after the
receipt of such certificate, take the action herein specified to call for
redemption, at the Sinking Fund redemption price, on the next succeeding
Sinking Fund payment date, an amount of Senior Debt Securities of such Series
sufficient to exhaust such funds as nearly as may be.
SECTION 4.09. The Senior Debt Securities to be redeemed from time to
time as provided in Section 4.04 or Section 4.08 shall be selected by the
Trustee for redemption in the manner provided in Section 4.02 and notice
thereof shall be given by the Trustee to the Company, and the Company hereby
irrevocably authorizes the Trustee, in the name of and at the expense of the
Company, to give notice on behalf of the Company of the call of such Senior
Debt Securities, all in the manner and with the effect in this Article Four
specified, except that, in addition to the matters required to be included in
such notice by Section 4.02, such notice shall also state that the Senior Debt
Securities therein designated for redemption are to be redeemed through
operation of the Sinking Fund. Such Senior Debt Securities shall be redeemed
and paid in accordance with such notice in the manner and with the effect
provided in Sections 4.02 and 4.03.
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Senior Debt Securities redeemed through operation of the Sinking Fund
are to be redeemed at the redemption price prescribed by the terms of the
Series Supplement creating the particular Series for redemption through
operation of the Sinking Fund, such price being sometimes referred to herein as
the Sinking Fund redemption price.
SECTION 4.10. In the event that at the time of the receipt of the
Officers' Certificate required by Section 4.06 the sum of the amount of cash
required to be paid to the Trustee pursuant to Section 4.07 and the amount of
cash then in the hands of the Trustee in the Sinking Fund and not required for
payment of Senior Debt Securities previously called for redemption or purchased
through operation of the Sinking Fund, is one percent of the amount of the
required Sinking Fund payment or less, such moneys shall not, unless requested
by the Company, in said Officers' Certificate, be applied to the redemption of
Senior Debt Securities, but shall be retained by the Trustee in the manner
directed by the Company in writing and added to the Sinking Fund payment to be
made in cash on the next succeeding Sinking Fund payment date, or, upon request
of the Company, shall be applied by the Trustee, to the extent practicable,
prior to the next succeeding Sinking Fund payment date to the purchase of
Senior Debt Securities of such Series, by public or private purchase in the
open market or otherwise, at prices (excluding accrued interest and brokerage
commissions) not exceeding the Sinking Fund redemption price.
SECTION 4.11. All Senior Debt Securities surrendered to or purchased
by the Trustee, pursuant to the provisions of this Article Four, shall be
forthwith cancelled by it, and at the written direction of the Company, such
Senior Debt Securities shall be disposed of by the Trustee, which shall deliver
its certificate of disposition thereof to the Company.
SECTION 4.12. The Trustee shall not redeem any Senior Debt Securities
of a Series with Sinking Fund moneys or mail any notice of redemption of Senior
Debt Securities of a Series during the continuance of any Event of Default with
respect to the Senior Debt Securities of such Series, except that where notice
of redemption of any Senior Debt Securities shall have been mailed prior to the
occurrence of such Event of Default, the Trustee shall redeem such Senior Debt
Securities provided funds are deposited with it for such purpose. Except as
aforesaid, any moneys in the Sinking Fund at such time, and any moneys
thereafter paid into the Sinking Fund, shall during the continuance of an Event
of Default be held as security for the payment of all the Senior Debt
Securities; provided, however, that in case such Event of Default shall have
been waived as permitted by this Indenture or otherwise cured, such moneys
shall thereafter be held and applied in accordance with the provisions of this
Article Four.
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ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. The Company will duly and punctually pay or cause to be
paid the principal of and premium, if any, and interest on each of the Senior
Debt Securities at the place, at the respective times and in the manner
provided in the Senior Debt Securities.
SECTION 5.02. As long as any of the Senior Debt Securities remain
outstanding, the Company will maintain in the City of Dallas, Texas, an office
or agency where the Senior Debt Securities may be presented for registration of
transfer and exchange as in this Indenture provided, and where the Senior Debt
Securities may be presented for payment, and where notices or demands to or
upon the Company in respect of the Senior Debt Securities or of this Indenture
may be served. Such an office or agency may also be maintained by the Company,
at its option, in other locations. Until otherwise designated by the Company
in a written notice to the Trustee, such office or agency for purposes of
registration of transfer and exchange and presentation for payment shall be the
corporate trust office of the Trustee. In case the Company shall fail to
maintain such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, notices or demands may be
served at the corporate trust offices of the Trustee.
SECTION 5.03. In order to prevent any accumulation of claims for
interest after maturity thereof, the Company will not directly or indirectly
extend or consent to the extension of the time for the payment of any claim for
interest on any of the Senior Debt Securities of a Series and will not directly
or indirectly be a party to or approve any such arrangement by the purchase or
funding of said claims for interest or in any other manner. No claim for
interest, the time of payment of which shall have been so extended or which
shall have been so purchased or funded, shall be entitled, in case of an Event
of Default with respect to the Senior Debt Securities of such Series hereunder,
to the benefit of this Indenture except after the prior payment in full of the
principal of all the Senior Debt Securities of such Series and premiums, if
any, and of all claims for interest not so extended, purchased or funded;
provided, however, that this Section 5.03 shall not apply in any case where an
extension shall be made pursuant to a plan proposed by the Company to the
holders of all the Senior Debt Securities of such Series then outstanding.
SECTION 5.04. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 8.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 5.05. (a) The Trustee is appointed the initial paying agent.
If the Company shall appoint a paying agent other than the Trustee, it will
cause such paying agent to execute and deliver to
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the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section 5.05:
(1) that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if any, and interest
on the Senior Debt Securities of a Series (whether such sums have been
paid to it by the Company or by any other obligor on the Senior Debt
Securities) in trust for the benefit of the holders of the Senior Debt
Securities of such Series,
(2) that it will give the Trustee written notice of any
default by the Company (or by any other obligor on the Senior Debt
Securities of any Series) in making any payment of the principal of or
premium, if any, or interest on the Senior Debt Securities of a Series
when the same shall be due and payable, and
(3) that it will, at any time during the continuance of
any such default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, or interest on
the Senior Debt Securities of a Series, set aside, segregate and hold in trust
for the benefit of the holders of the Senior Debt Securities of such Series a
sum sufficient to pay such principal and premium, if any, or interest so
becoming due. The Company will promptly notify the Trustee in writing of any
failure by it to take such action or the failure by any other obligor on the
Senior Debt Securities of such Series to make any payment of the principal of
or premium, if any, or interest on the Senior Debt Securities of such Series
when the same shall be due and payable.
(c) Anything in this Section 5.05 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 5.05, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 5.05 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 5.05 is subject
to the provisions of Section 13.03 and 13.04.
SECTION 5.06. On or before the 90th day after the end of the
Company's fiscal year beginning with the fiscal year ended March 31, 199_, the
Company will file with the Trustee a certificate from its principal executive
officer, principal financial officer or principal accounting officer as to his
or her
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knowledge of the Company's compliance with all conditions and covenants under
this Indenture.
ARTICLE SIX.
LISTS OF HOLDERS OF SENIOR DEBT SECURITIES AND
REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 6.01. The Company covenants and agrees that it will furnish
or cause to be furnished to the Trustee within 60 days after each interest
payment date and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list in such
form as the Trustee may reasonably require containing all information in the
possession or control of the Company, or any of its paying agents, other than
the Trustee, as to the names and addresses of the holders of the Senior Debt
Securities of any Series obtained since the date as of which the next previous
list, if any, was furnished with respect to such Series; but so long as the
Trustee is the Senior Debt Security Registrar no such list shall be required to
be furnished. Any such list may be dated as of a date not more than 15 days
prior to the time such information is furnished or caused to be furnished, and
need not include information received after such date.
SECTION 6.02. (a) The Trustee shall preserve, in as current a form as
reasonably practicable, all information as to the names and addresses of the
holders of Senior Debt Securities (1) contained in the most recent list
furnished to it as provided in Section 6.01 and (2) received by it in the
capacity of Senior Debt Security Registrar or of paying agent (if so acting)
hereunder. The Trustee may destroy any list furnished to it pursuant to
Section 6.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Senior Debt Securities
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Senior Debt Security for a period of at least six months preceding the date of
such application, and such application states that the applicants desire to
communicate with other holders of Senior Debt Securities of a particular Series
(in which case the applicants must all hold Senior Debt Securities of such
Series) or with holders of all Senior Debt Securities with respect to their
rights under this Indenture or under the Senior Debt Securities, and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either:
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 6.02, or
(2) inform such applicants as to the approximate number of
holders of Senior Debt Securities of such Series or all
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Senior Debt Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the Trustee, in
accordance with the provisions of subsection (a) of this Section 6.02,
and as to the approximate cost of mailing to such holders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information the Trustee shall, upon the written request of such
applicants, mail to each holder of such Series or all Senior Debt Securities,
as the case may be, whose name and address appears in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 6.02, a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the holders of Senior
Debt Securities of such Series or all Senior Debt Securities, as the case may
be, or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If said Commission, after opportunity for a
hearing upon the objections specified in the written statements so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, said Commission
shall find, after notice and opportunity for hearing, that all the objections
so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all holders of Senior Debt Securities of
such Series or all Senior Debt Securities, as the case may be, with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every holder of the Senior Debt Securities, by receiving
and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent nor any Senior Debt Security
Registrar should be held accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of Senior Debt
Securities in accordance with the provisions of subsection (b) of this Section
6.02, regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b) or for taking any
action in good faith under said subsection (b).
SECTION 6.03. (a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to
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file the same with the Securities and Exchange Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as said Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
said Commission pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of such sections, then to file with the
Trustee and said Commission, in accordance with rules and regulations
prescribed from time to time by said Commission, such supplementary and
periodic information, documents and reports which may be required pursuant to
section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and
regulations prescribed from time to time by said Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in the Indenture as may be
required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to the
holders of Senior Debt Securities as their names and addresses appear on the
Senior Debt Security Register for each Series of Senior Debt Securities, (1)
within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section 6.03 as may be required by rules and
regulations prescribed from time to time by the Securities and Exchange
Commission, and (2) within 120 days after the end of each fiscal year of the
Company, copies of audited financial statements, on a consolidated basis if
applicable, including balance sheets, statements of operations, statements of
shareholders' equity and statements of changes in financial position, together
with the respective reports of independent certified public accountants
relating thereto.
SECTION 6.04. (a) Within 60 days after May 15 of each year commencing
with the year 199_, so long as any Senior Debt Securities of a particular
Series are outstanding hereunder, the Trustee shall transmit to the holders of
each such Series as hereinafter in this Section 6.04 provided, a brief report
dated as of such May 15, with respect to any of the following events which may
have occurred within the previous twelve months (but if no such event has
occurred within such period, no report needs to be transmitted):
(1) any change to its eligibility under Section 8.09, and its
qualifications under Section 8.08;
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(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 8.08(c);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Senior Debt Securities of
such Series, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect)
to report such advances if such advances so remaining unpaid aggregate
not more than one-half of one percent of the principal amount of the
Senior Debt Securities of such Series outstanding on the date of such
report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Senior Debt Securities) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property held
as collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in paragraphs
(2), (3), (4) or (6) of subsection (b) of Section 8.13;
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any change to any release, or release and substitution, of
property subject to the lien of this Indenture (and consideration
therefor, if any) not previously reported;
(7) any additional issue of Senior Debt Securities not
previously reported; and
(8) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Senior Debt Securities
except action in respect of a default, notice of which has been or is
to be withheld by it in accordance with the provisions of Section
7.07.
(b) The Trustee shall transmit to the holders of a Series, as
hereinafter provided, a brief report with respect to the character and amount
of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee as such since the date of
the last report transmitted pursuant to the provisions of subsection (a) of
this Section 6.04 (or if no such report has yet been so transmitted, since the
date of execution of this Indenture), for the reimbursement of which it claims
or may claim a lien or charge prior to that of the Senior
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Debt Securities of such Series, on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this subsection
(b), except that the Trustee shall not be required (but may elect) to report
such advances if such advances remaining unpaid at any time aggregate 10
percent or less of the principal amount of Senior Debt Securities of such
Series outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 6.04 shall be transmitted by mail
to all holders of Senior Debt Securities of a Series, as the names and
addresses of such holders appear upon the Senior Debt Security Register.
(d) A copy of each such report shall, at the time of such transmission
to holders, be filed by the Trustee with each stock exchange upon which the
Senior Debt Securities are listed and also with the Securities and Exchange
Commission. The Company agrees to notify the Trustee when and as the Senior
Debt Securities of any Series become listed on any stock exchange.
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS OF SENIOR
DEBT SECURITIES IN EVENT OF DEFAULT.
SECTION 7.01. In case one or more of the following Events of Default
with respect to the Senior Debt Securities of a Series shall have occurred and
be continuing, that is to say:
(a) default in the payment of any installment of interest upon
any of the Senior Debt Securities of such Series as and when the same
shall become due and payable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of the principal of or premium, if
any, on any of the Senior Debt Securities of such Series or of any
Sinking Fund payment as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Senior Debt Securities or in this Indenture contained
for a period of 60 days after the date on which written notice (such
written notice to state it is a "Notice of Default" hereunder) of such
failure, requiring the Company to remedy the same, shall have been
given to the Company by the Trustee, or to the Company and the Trustee
by the holders of at least 25 per cent in principal amount of the
Senior Debt Securities of such Series at the time outstanding; or
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(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
the Company or for any substantial part of its property or ordering
the winding up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company
or for any substantial part of its property, or make any general
assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or corporate action shall be taken
by the Company in furtherance of any such action;
then, and in each and every such case, unless the principal of all the Senior
Debt Securities of such Series shall have already become due and payable,
either the Trustee or the holders of not less than 25 per cent in aggregate
principal amount of the Senior Debt Securities of such Series then outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
holders of Senior Debt Securities), may, and at the request of the holders of
not less than 25 per cent in aggregate principal amount of the Senior Debt
Securities of such Series then outstanding hereunder, the Trustee by notice in
writing to the Company shall, declare the principal of all the Senior Debt
Securities of such Series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the said Senior Debt Securities of such Series
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that if, at anytime after the principal of the Senior Debt
Securities of such Series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Senior Debt Securities of that Series and the principal
of and premium, if any, on any and all such Senior Debt Securities which shall
have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that payment of such interest
is enforceable under applicable law, upon overdue installments of interest, at
the rate borne by the Senior Debt Securities of that Series to the date of such
payment or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents and counsel, and all other
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expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith, and any and all defaults under the
Indenture, other than the nonpayment of the principal of Senior Debt Securities
of that Series which shall have become due by acceleration, shall have been
remedied -- then, and in every such case, the holders of a majority in
aggregate principal amount of the Senior Debt Securities of such Series then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults and rescind and annul such declaration and its consequences; but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then, and in every such case, the
Company, the Trustee and the holders of the Senior Debt Securities of such
Series shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
and the holders of the Senior Debt Securities of such Series shall continue as
though no such proceedings had been taken.
The Trustee shall not be charged with notice of any default or Event
of Default under subsections (c), (d) or (e) of this Section 7.01 unless the
Trustee shall have actually received (at its corporate trust office) written
notice thereof from the Company or any holder of Senior Debt Securities
describing said default or Event of Default.
SECTION 7.02. The Company covenants that (1) in case default shall be
made in the payment of any installment of interest on any of the Senior Debt
Securities of a Series, as and when the same shall become due and payable, and
such default, shall have continued for a period of 60 days, or (2) in case
default shall be made in the payment of the principal of or premium, if any, on
any of the Senior Debt Securities of a Series or of any Sinking Fund payment
when the same shall have become payable, whether upon maturity of the Senior
Debt Securities of such Series or upon redemption or upon declaration or
otherwise then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Senior Debt Securities of such
Series, the whole amount that then shall have become due and payable on all
such Senior Debt Securities of such Series for principal and premium, if any,
or interest, or both, as the case may be, with interest upon the overdue
principal and premium, if any, and (to the extent that payment of such interest
is enforceable under applicable law) upon overdue installments of interest at
the rate borne by the Senior Debt Securities of such Series; and, in addition
thereto, such further amount as shall be sufficient to cover reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
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In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other obligor upon the
Senior Debt Securities and collect in the manner provided by law out of the
property of the Company or other obligor upon the Senior Debt Securities
wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Senior Debt
Securities under the Federal bankruptcy laws, as now or hereafter constituted,
or any other Federal or State bankruptcy, insolvency or similar laws relative
to the Company or to such other obligor, its creditors or its property, or in
case a receiver or trustee shall have been appointed for its property, or in
case of any other judicial proceedings relative to the Company or other obligor
upon the Senior Debt Securities, its creditors or its property, the Trustee
irrespective of whether the principal of any Senior Debt Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 7.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and premium, if any, and interest
owing and unpaid in respect of the Senior Debt Securities, and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the holders of Senior Debt Securities allowed in any judicial
proceedings relative to the Company or other obligor upon the Senior Debt
Securities, its creditors or its property, and to collect and receive any
moneys or other property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims of the holders of
Senior Debt Securities and of the Trustee on their behalf; and any receiver,
assignee, liquidator, sequestrator or trustee in bankruptcy or reorganization
is hereby authorized by each of the holders of Senior Debt Securities to make
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of payments directly to the holders of Senior Debt Securities, to
pay to the Trustee such amount as shall be sufficient to cover reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due to the Trustee under Section 8.06.
All rights of action and of asserting claims under this Indenture, or
under any of the Senior Debt Securities, may be enforced by the Trustee without
the possession of any of the Senior Debt Securities, or the production thereof
in any trial or other
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proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name and as trustee of an express
trust, and any recovery of judgment shall be for the ratable benefit of the
holders of the Senior Debt Securities.
In case of a default of which the Trustee has or is deemed to have
notice hereunder occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specified enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the trustee by this Indenture or by law.
SECTION 7.03. Any moneys collected by the Trustee pursuant to Section
7.02 shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or premium, if any, or interest, upon presentation of the several Senior Debt
Securities, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection,
and reasonable compensation, expenses, disbursements and advances of
the Trustee, it agents and counsel, and any other amounts due to the
Trustee under this Indenture, including without limitation amounts due
under Section 8.06;
SECOND: In case the principal of the Senior Debt Securities
of a Series shall not have become due, to the payment of interest on
the Senior Debt Securities, in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue
installments of interest at the rate borne by the Senior Debt
Securities of such Series, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Senior Debt Securities of
a Series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Senior Debt
Securities of such Series for principal, and premium, if any, and
interest, with interest on the overdue principal, and premium, if any,
and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate borne by
the Senior Debt Securities of such Series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and
unpaid on the Senior Debt Securities of such Series, then
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to the payment of such principal, and premium, if any, and interest,
without preference or priority of principal, and premium, if any, over
interest, or of interest over principal, and premium, if any, or of
any installment of interest over any other installment of interest, or
of any Senior Debt Security of such Series over any other Senior Debt
Security of such Series, ratably to the aggregate of such principal,
and premium, if any, and accrued and unpaid interest.
SECTION 7.04. No holder of any Senior Debt Security of a Series shall
have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceedings at law or in equity or in bankruptcy or
otherwise, upon or under or with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of
default in respect of such Series and of the continuance thereof, as
hereinbefore provided, and unless also the holders of not less than 25 percent
in aggregate principal amount of the Senior Debt Securities of such Series then
outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action or proceedings and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 7.06; it being understood and intended, and being
expressly covenanted by the taker and holder of every Senior Debt Security of
such Series with every other such taker and holder and the Trustee, that no one
or more holders of Senior Debt Securities of a Series shall have any right in
any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of the holders of any other of such
Senior Debt Securities of such Series, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Senior Debt Securities of such Series. For
the protection and enforcement of the provisions of this Section 7.04, each and
every holder of such Series and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Senior Debt Security to receive payment of the
principal of, and premium, if any, and interest on, such Senior Debt Security,
on or after the respective due dates expressed in such Senior Debt Security, or
to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
holder.
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SECTION 7.05. All powers and remedies given by this Article Seven to
the Trustee or to the holders of Senior Debt Securities shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or such holders, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any holder of any of the Senior Debt Securities
to exercise any right or power accruing upon any default occurring and
continuing as aforesaid, shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 7.04, every power and remedy given by this
Article Seven or by law to the Trustee or to the holders of Senior Debt
Securities may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by such holders.
SECTION 7.06. The holders of a majority in aggregate principal amount
of the Senior Debt Securities of a Series at the time outstanding shall have
the right to direct the time, method, and place of conducting any proceeding of
any remedy available to the Trustee with respect to the Senior Debt Securities
of such Series, or exercising any trust or power conferred on the Trustee with
respect to such Series; provided, however, that the Trustee shall be entitled
to receive indemnity or security reasonably satisfactory to it prior to
following such direction or taking such action, and providing further that
subject to the provisions of Section 8.01 the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if
the Trustee in good faith shall, by a responsible officer or officers,
determine that the action so directed would be unduly prejudicial to the
holders of the Senior Debt Securities of such Series not taking part in such
direction or would involve the Trustee in personal liability. Prior to the
declaration of the maturity of the Senior Debt Securities of any Series as
provided in Section 7.01, the holders of a majority in aggregate principal
amount of the Senior Debt Securities of a Series at the time outstanding may on
behalf of the holders of all of the Senior Debt Securities of such Series waive
any past default hereunder and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest on, any of the
Senior Debt Securities of such Series or in respect of a covenant or provision
hereof which under Section 11.02 cannot be modified or amended without the
consent of the holder of each Senior Debt Security so affected. In the case of
any such waiver, the Company, the Trustee and the holders of the Senior Debt
Securities of such Series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 7.07. The Trustee shall, within 90 days after the occurrence
of a default with respect to a Series of which the Trustee has or is deemed to
have knowledge hereunder, give to the
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holders of such Series, in the manner and to the extent provided in subsection
(c) of Section 6.04, notice of all such defaults, unless such default shall
have been cured before the giving of such notice (the term "default" or
"defaults" for the purposes of this Section 7.07 being hereby defined to be any
event or events, as the case may be, specified in clause (a), (b), (c), (d) and
(e) of Section 7.01, not including periods of grace, if any, provided for
therein and irrespective of the giving of the written notice specified in
clause (c) of Section 7.01); provided, however, that, except in the case of
default in the payment of the principal of, or premium, if any, or interest on,
any of the Senior Debt Securities, or in the payment of any Sinking Fund
installment, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust
committee of directors and/or responsible officers, of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
holders of such Series.
SECTION 7.08. All parties to this Indenture agree, and each holder of
any Senior Debt Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 7.08 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any holder of Senior
Debt Securities, or group of holders of Senior Debt Securities, holding in the
aggregate more than 10 percent in aggregate principal amount of the Senior Debt
Securities of a Series then outstanding, or to any suit instituted by any
holder of Senior Debt Securities for the enforcement of the payment of the
principal of, or premium, if any, or interest on, any Senior Debt Security, on
or after the due date expressed in such Senior Debt Security.
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. The Trustee, prior to the occurrence of an Event of
Default with respect to the Senior Debt Securities of a particular Series and
after the curing or waiver of all Events of Default with respect to the Senior
Debt Securities of a particular Series which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Senior Debt
Securities of any Series has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and
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powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to
the Senior Debt Securities of a particular Series and after the curing of all
Events of Default with respect to the Senior Debt Securities of any Series
which may have occurred:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a responsible officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in aggregate principal
amount of the Senior Debt Securities of a Series at the time outstanding
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture relating to such Series.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if there is reasonable ground for believing
that the repayment of such funds is not reasonably assured to it or at the
option of the
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Trustee indemnity reasonably satisfactory to the Trustee against such risk or
liability has not been provided.
Whether or not herein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
8.01.
SECTION 8.02. Except as otherwise provided in Section 8.01:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, direction,
approval, order, bond, debenture, or other paper or document believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) Any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
instrument signed in the name of the Company by the Chairman of the
Board, President or any Vice President and the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer (unless
other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors of the Company may be
evidenced to the Trustee by a copy thereof certified by the Secretary
or an Assistant Secretary of the Company;
(c) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(d) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the holders of Senior Debt
Securities, pursuant to the provisions of this Indenture, unless such
holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, discretion, approval, bond, debenture or other paper
or document, but the Trustee, in its discretion, may make such further
inquiry or
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investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
and
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
(other than an employee of the Trustee) appointed by it with due care
hereunder.
SECTION 8.03. The recitals contained herein and in the Senior Debt
Securities (except in the Trustee's certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Senior Debt Securities. The Trustee shall not be accountable for the use or
application by the Company of any of the Senior Debt Securities or of the
proceeds thereof.
SECTION 8.04. The Trustee or any paying agent or Senior Debt Security
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Senior Debt Securities with the same rights it would have if it were
not Trustee, paying agent or Senior Debt Security Registrar.
SECTION 8.05. Subject to the provisions of Section 13.04, all moneys
received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. Neither the
Trustee nor any paying agent shall be under any liability for interest on any
moneys received by it hereunder except such as it may agree in writing with the
Company to pay thereon. So long as no Event of Default with respect to the
Senior Debt Securities of any Series shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by its President or any Vice President or
its Treasurer or an Assistant Treasurer.
SECTION 8.06. The Company covenants and agrees to pay to the Trustee
from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust), and, except as otherwise expressly provided, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith.
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If any property other than cash shall at any time be subject to a lien
in favor of the holders of Senior Debt Securities, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such
lien, shall be entitled to make advances for the purpose of preserving such
property or of discharging tax liens or other prior liens or encumbrances
thereon, provided that the Trustee shall be under no affirmative duty to make
such advances. The Company also covenants to indemnify the Trustee, its
directors, officers, employees or agents for, and to hold each of them harmless
against, any loss, liability or expense incurred without negligence,
intentional wrongdoing or bad faith on the part of the Trustee, its directors,
officers, employees or agents, arising out of or in connection with the
acceptance or administration of this trust, the offering, issuance or sale of
the Debt Securities or any or all other transactions contemplated hereunder,
including the reasonable cost and expenses of defending against any claim of
liability in the premises. The obligations of the Company under this Section
8.06 to compensate the Trustee, its directors, officers, employees or agents
and to pay or reimburse the Trustee, its directors, officers, employees or
agents for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. The Trustee shall give the Company prompt notice of
any action commenced against it in respect of which indemnity may be sought
hereunder. The Trustee's willful failure to so notify the Company, after the
receipt by the Trustee at its Corporate Trust Office of written notification of
such action, shall relieve the Company from any liability under this Indenture
with respect to such action. In any such action the Company, by written notice
to the Trustee, may assume the defense thereof with counsel of the Trustee's
choosing, who shall be subject to the approval of the Company; and such
approval shall not be unreasonably withheld by the Company. In no event shall
the Company be required to indemnify or reimburse the Trustee hereunder in
respect of any claim settled or compromised without its consent. In no event
shall the Company be liable for the fees and expenses, which in all cases must
be reasonable under the circumstances, of more than one counsel in connection
with any one action. Such additional indebtedness shall be secured by a lien
prior to that of the Senior Debt Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the holders of particular Senior Debt Securities of any Series.
SECTION 8.07. Except as otherwise provided in Section 8.01, whenever
in the administration of the provisions of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee and such Officers' Certificate, in the absence of negligence or bad
faith on the part of the Trustee,
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shall be full warrant to the Trustee for any action taken, suffered or omitted
by it under the provisions of this Indenture upon the faith thereof.
SECTION 8.08. (a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section 8.08, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign in the manner and with the effect specified in
Section 8.10, such resignation to become effective upon the appointment of a
successor trustee and such successor's acceptance of such appointment, and the
Company shall take prompt steps to have a successor appointed in the manner
provided in Section 8.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 8.08, the Trustee shall, within 10
days after the expiration of such 90 day period, transmit notice of such
failure to the holders of Senior Debt Securities in the manner and to the
extent provided in subsection (c) of Section 6.04.
(c) For the purposes of this Section 8.08 the Trustee shall be
deemed to have a conflicting interest if a default or an Event of Default
exists with respect to the Senior Debt Securities of any Series and if:
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the Company are outstanding
or is trustee for more than one outstanding "series of securities" (as
hereafter defined) issued under a single indenture (including, without
limitation, this Indenture) of the Company unless such other indenture
is a collateral trust indenture under which the only collateral
consists of Senior Debt Securities issued under this Indenture,
provided that there shall be excluded from the operation of this
paragraph any other Series of Senior Debt Securities issued under this
Indenture, and any other indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding if (i) this Indenture and
such other indenture or indentures (and all series of securities
issuable thereunder) are wholly unsecured and rank equally, and such
other indenture or indentures (and such series) are specifically
described in this Indenture or are hereafter qualified under the Trust
Indenture Act of 1939, unless the Securities and Exchange Commission
shall have found and declared by order pursuant to subsection (b) of
Section 305 or subsection (c) of Section 307 of the Trust Indenture
Act of 1939 that differences exist between the provisions of this
Indenture (or such series) and the provisions of such other indenture
or indentures (or such series) which are so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of
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investors to disqualify the Trustee from acting as such under this
Indenture or such other indenture or indentures, or (ii) the Company
shall have sustained the burden of proving, on application to the
Securities and Exchange Commission and after opportunity for hearing
thereon, that the trusteeship under this Indenture and such other
indenture, or under more than one outstanding series under a single
indenture, is not so likely to involve a material conflict of interest
as to make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such under one
of such indentures or with respect to such series;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee, or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (A) one individual may be a
director and/or an executive officer of the Trustee and a director
and/or an executive officer of the Company, but may not be at the same
time an executive officer of both the Trustee and the Company; (B) if
and so long as the number of directors of the Trustee in office is
more than nine, one additional individual may be a director and/or an
executive officer of the Trustee and a director of the Company; and
(C) the Trustee may be designated by the Company, or by any
underwriter for the Company, to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent, or
depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this subsection (c), to act as trustee
whether under an indenture or otherwise;
(5) 10 percent or more of the voting securities of the
Trustee is beneficially owned either by the Company or by any
director, partner, or executive officer thereof, or 20 percent or more
of such voting securities is beneficially owned, collectively, by any
two or more of such persons; or 10 percent or more of the voting
securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner, or executive
officer thereof, or is beneficially owned, collectively, by any two or
more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), (A) 5 percent or more of
the voting securities, or 10 percent or more of any
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other class of security, of the Company, not including the Senior Debt
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (B) 10
percent or more of any class of security of an underwriter for the
Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 5 per cent or more of the
voting securities of any person who, to the knowledge of the Trustee,
owns 10 percent or more of the voting securities of, or controls
directly or indirectly, or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 10 per cent or more of
any class of security of any person who, to the knowledge of the
Trustee, owns 50 per cent or more of the voting securities of the
Company; or
(9) the Trustee owns on the date of default upon the
Senior Debt Securities of any Series or any anniversary of such
default while such default upon the Senior Debt Securities of such
Series remains outstanding, in the capacity of executor,
administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an
aggregate of 25 per cent or more of the voting securities, or of any
class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this subsection (c). As
to any such securities of which the Trustee acquired ownership through
becoming executor, administrator, or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities do not exceed 25
percent of such voting securities or 25 per cent of any such class of
security. Promptly after the dates of any such default upon the
Senior Debt Securities of any Series and annually in each succeeding
year that the Senior Debt Securities of such Series remain in default,
the Trustee shall make a check of its holdings of such securities in
any of the above-mentioned capacities as of such dates. If the
Company fails to make payment in full of principal of or interest on
any of the Senior Debt Securities when and as the same become due and
payable, and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holdings of such securities
in any of the above-mentioned capacities as of the date of the
expiration of such 30 day period, and after such date, notwithstanding
the foregoing provisions of this paragraph (9), all such securities so
held by the Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such
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failure shall continue, be considered as though beneficially owned by
the Trustee for the purposes of paragraphs (6), (7) and (8) of this
subsection (c).
(10) Except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 8.13(b), the Trustee
shall be or shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection (c) and Section 7.06,
the term "series of securities" or "series" means a series, class or group of
securities issuable under an indenture pursuant to whose terms holders of one
such series may vote to direct the trustee, or otherwise take action pursuant
to a vote of such holders, separately from holders of another series; provided,
that "series of securities" or "series" shall not include any series of
securities issuable under an indenture if all such series rank equally and are
wholly unsecured.
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (c) shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as defined in clause (B) above, or (ii) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (iii) any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar representative
capacity.
Except as above provided, the word "security" or "securities" as used
in this Indenture shall mean any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral-trust certificate, pre-organization
certificate or subscription, transferable share, investment contract,
voting-trust certificate, certificate of deposit for a security, fractional
undivided interest in oil, gas, or other mineral rights, or, in general, any
interest or instrument commonly known as a "security", or any certificate of
interest or participation in, temporary or
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interim certificate for, receipt for, guarantee of or warrant or right to
subscribe to or purchase, any of the foregoing.
(d) For the purposes of this Section 8.08:
(1) The term "underwriter" when used with reference to
the Company shall mean every person who, within one year prior to the
time as of which the determination is made, has purchased from the
Company with a view to, or has offered for sale or has sold for the
Company in connection with, the distribution of any security of the
Company outstanding at such time, or has participated or has had a
direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include
a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with
respect to any organization whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock company, a
trust, an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust"
shall include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or
holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" shall mean any obligor upon the Senior
Debt Securities.
(6) The term "executive officer" shall mean the president,
every vice president, every trust officer, the cashier, the secretary
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
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(e) The percentage of voting securities and other securities
specified in this Section 8.08 shall be calculated in accordance with the
following provisions:
(A) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in this
Section 8.08 (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities of
such person as entitles the holder or holders thereof to cast such
specified percentage of the aggregate votes which the holders of all
the outstanding voting securities of such person are entitled to cast
in the direction or management of the affairs of such person.
(B) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
(i) Securities of an issuer held in a sinking
fund relating to another class of securities of the issuer of
the same class.
(ii) Securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities is
not in default as to principal or interest or otherwise.
(iii) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise.
(iv) Securities held in escrow if placed in
escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another if both securities confer upon the holder or holders thereof
substantially the same rights and privileges;provided, however, that,
in the case of secured evidences of
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indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various series
thereof shall not be deemed sufficient to constitute such series
different classes; and provided, further, that, in the case of
unsecured evidences of indebtedness, differences in the interest rates
or maturity dates thereof shall not be deemed sufficient to constitute
them securities of different classes, whether or not they are issued
under a single indenture.
SECTION 8.09. The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States or
of any State or of the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $10,000,000, subject to supervision or examination by Federal, State or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.09, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any person directly
or indirectly controlling, controlled by or under common control with the
Company shall serve as Trustee under this Indenture or any Series Supplement.
In case at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section 8.09, the Trustee shall resign immediately in
the manner and with the effect specified in Section 8.10.
SECTION 8.10. (a) The Trustee may at any time resign with respect to
one or more or all Series of Senior Debt Securities by giving written notice by
first-class mail of such resignation to the Company. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
by written instrument in duplicate executed by order of the Board of Directors
of the Company, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any holder who has been a bona fide holder of a Senior Debt
Security or Senior Debt Securities of the applicable Series for at least six
months may, subject to the provisions of Section 8.08, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee. Any resignation of
the Trustee shall be subject to the provisions of subparagraph (d) hereof.
(b) In case at any time any of the following shall occur:
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(1) the Trustee shall fail to comply with the provisions
of subsection (a) of Section 8.08 with respect to any Series of Senior
Debt Securities after written request therefor by the Company or by
any holder who has been a bona fide holder of a Senior Debt Security
or Senior Debt Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.09 and shall fail to resign after
written request therefor by the Company or by any such holder, or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 7.08, any holder who has been a bona fide
holder of a Senior Debt Security or Senior Debt Securities of such Series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to the applicable Series and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee with respect to the
applicable Series and appoint a successor trustee.
(c) The Company may also remove the Trustee, pursuant to the
procedures set forth in Section 8.10(b) hereof, if the Company has given 60
days written notice to the Trustee and the holders of the applicable Series of
Senior Debt Securities and has delivered to the Trustee and such holders of
Senior Debt Securities an Officers' Certificate stating:
(1) the reasons for such removal;
(2) that such removal will in no way be detrimental to
the interests of such holders of Senior Debt
Securities; and
(3) the identity of the successor trustee to be appointed;
provided that (i) such successor trustee shall have a combined capital and
surplus of at least $20,000,000, (ii) the rating assigned to the debt
obligations of such successor trustee by the rating agency or agencies rating
any such debt obligations shall be
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no lower than the rating assigned, at the time of appointment of the Trustee
being replaced, to the debt obligations of the Trustee being replaced, and
(iii) such successor trustee shall be independent and shall be eligible to act
as Trustee pursuant to Sections 8.08 and 8.09 hereof; and, provided further
that if after receiving such notice, the holders of a majority in principal
amount of the outstanding Senior Debt Securities of the applicable Series shall
notify the Trustee that they are opposed to such removal, the Company shall not
be entitled to remove the Trustee pursuant to this Section 8.10(c) and the
Company shall not be entitled to exercise its rights pursuant to this Section
8.10(c) for six months after such notice by the holders of Senior Debt
Securities.
(d) The holders of a majority in aggregate principal amount of the
Senior Debt Securities of any Series at the time outstanding may at any time
remove the Trustee with respect to the Senior Debt Securities of such Series
and appoint a successor trustee of the applicable Series of Senior Debt
Securities by delivery to the Trustee so removed, to the successor trustee so
appointed and to the Company, the evidence provided for in Section 9.01 of the
action taken by the holders of the Senior Debt Securities.
(e) Any resignation or removal of the Trustee and any appointment
of a successor trustee pursuant to any of the provisions of this Section 8.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 8.11.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
holders of the applicable Series of Senior Debt Securities as their names and
addresses appear in the Senior Debt Security Register. Each notice shall
include the name of the successor trustee and the address of its principal
corporate trust office. If the Company fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.
SECTION 8.11. Any successor trustee appointed as provided in Section
8.10 shall execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the predecessor trustee with respect to all or any
applicable Series shall become effective and such successor trustee without any
further act, deed or conveyance shall become vested with all the rights,
powers, duties and obligations of its predecessor, with like effect as if
originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the Trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of Section
8.06, execute and deliver an instrument transferring to such
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successor trustee all the right and powers of the Trustee so ceasing to act.
Upon request of any such successor trustee, the Company shall execute any and
all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a lien upon all property or funds
held or collected by such trustee to secure any amounts then due it pursuant to
the provisions of Section 8.06.
If a successor trustee is appointed with respect to the Senior Debt
Securities of one or more (but not all) Series, the Company, the predecessor
trustee and each successor trustee with respect to the Senior Debt Securities
of any applicable Series shall execute and deliver an agreement supplemental
hereto which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor trustee with respect to the Senior Debt Securities of any Series as
to which the predecessor trustee is not retiring shall continue to be vested in
the predecessor trustee, and shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental agreement shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be a trustee of a trust or trusts under separate Indentures.
No successor trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 8.08 and eligible under the
provisions of Section 8.09.
SECTION 8.12. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger or conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
Section 8.08 and eligible under the provisions of Section 8.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Senior Debt Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee, and deliver
such Senior Debt Securities so authenticated; and in case at that time any of
the Senior Debt Securities shall not have been authenticated, any successor to
the Trustee may authenticate such Senior Debt Securities either in the name of
any predecessor hereunder or in the name of the successor trustee; and in all
such cases such
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certificate shall have the full force which it is anywhere in the Senior Debt
Securities or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Senior Debt
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 8.13. (a) Subject to the provisions of subsection (b) of this
Section 8.13, if the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company on the Senior Debt Securities
within three months prior to a default, as defined in subsection (c) of this
Section 8.13, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the holders of the Senior
Debt Securities and the holders of other indenture securities (as defined in
subsection (c) of this Section 8.13):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three
months' period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of
any such property, if disposed of,subject, however, to the rights, if
any, of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the Company) who
is liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other Federal or State bankruptcy,
insolvency or similar law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
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was so held prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in subsection (c) of this Section
8.13 would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in such paragraph (B) or (C), as
the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have
the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the holders of Senior Debt Securities and the holders of
other indenture securities in such manner that the Trustee, the holders of
Senior Debt Securities and the holders of other indenture securities realize,
as a result of payments from such special account and payments of dividends on
claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal bankruptcy laws, as now
or hereafter constituted, or any other Federal or State bankruptcy, insolvency
or similar law, the same percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of the receipt by it
from the Company of the funds and property in such special account and before
crediting to the respective claims of the Trustee, the holders of Senior Debt
Securities and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other Federal or State bankruptcy, insolvency or similar
law, but after crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other than from such
dividends and from the funds and property so held in such special account. As
used in this
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paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal bankruptcy laws, as now
or hereafter constituted, or any other Federal or State bankruptcy, insolvency
or similar law, whether such distribution is made in cash, securities, or other
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which said bankruptcy,
receivership, or proceeding for reorganization is pending shall have
jurisdiction (i) to apportion between the Trustee, the holders of Senior Debt
Securities and the holders of other indenture securities, in accordance with
the provisions of this paragraph, the funds and property held in such special
account and the proceeds thereof, or (ii) in lieu of such apportionment, in
whole or in part, to give to the provisions of this paragraph due consideration
in determining the fairness of the distributions to be made to the Trustee, the
holders of Senior Debt Securities and the holders of other indenture securities
with respect to their respective claims, in which event it shall not be
necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period,
it shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee
had continued as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section 8.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the purpose
of preserving any property which shall at any time be
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subject to the lien of this Indenture or of discharging tax liens or
other prior liens or encumbrances thereof, if notice of such advance
and of the circumstances surrounding the making thereof is given to
the holders of Senior Debt Securities at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section 8.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as defined in
subsection (c) of this Section 8.13.
(c) As used in this Section 8.13:
(1) The term "default" shall mean any failure to make payment in
full of the principal of or interest on any of the Senior Debt Securities or
upon the other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "other indenture securities" shall mean securities
upon which the Company is an obligor (as defined in the Trust Indenture Act of
1939) outstanding under any other indenture (A) under which the Trustee is also
trustee, (B) which contains provisions substantially similar to the provisions
of subsection (a) of this Section 8.13, and (C) under which a default exists at
the time of the apportionment of the funds and property held in said special
account.
(3) The term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacture, shipment, storage or sale of
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goods, wares or merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising form the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor upon the Senior Debt
Securities.
ARTICLE NINE.
CONCERNING THE HOLDERS OF SENIOR DEBT SECURITIES.
SECTION 9.01. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Senior
Debt Securities of a Series may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the
holders of such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by
holders in person or by agent or proxy appointed in writing, or (b) by the
record of the holders of the Senior Debt Securities of such Series voting in
favor thereof at any meeting of holders duly called and held in accordance with
the provisions of Article Ten, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of holders.
SECTION 9.02. Subject to the provisions of Section 9.01 and Section
9.05, proof of the execution of any instrument by a holder or his agent or
proxy and proof of the holding by any person of any of the Senior Debt
Securities of a Series shall be sufficient if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction within the United States of America authorized to
take acknowledgments of deeds to be recorded in such jurisdiction, that the
person executing such instrument acknowledged to him the execution thereof, by
an affidavit of a witness to such execution sworn to before any such notary or
other such officer or by any other method or in any other manner as shall be
acceptable to the Trustee. If such execution is by an officer of a corporation
or association or a member of a partnership on behalf of such corporation,
association or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The ownership of Senior Debt Securities of a Series shall be proved by
the Senior Debt Security Register or by a certificate of the Senior Debt
Security Registrar thereof.
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The Trustee shall not be bound to recognize any person as a holder
unless and until his title to the Senior Debt Securities held by him is proved
in the manner in this Article Nine provided.
The Trustee may require such additional proof of any matter referred
to in this Section 9.02 as it shall deem necessary.
The record of any holders' meeting shall be proved in the manner
provided in Section 10.06.
SECTION 9.03. The Company, the Trustee, any paying agent and any
Senior Debt Security Registrar may deem and treat the person in whose name any
Senior Debt Security shall be registered in the Senior Debt Security Register
as the absolute owner of such Senior Debt Security (whether or not such Senior
Debt Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by anyone other than the Company or any Senior Debt
Security Registrar) for the purpose of receiving payment thereof or on account
thereof and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Senior Debt Security Registrar shall be affected by
any notice to the contrary. All such payments so made to any such registered
holder for the time being, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Senior Debt Security.
SECTION 9.04. In determining whether the holders of the requisite
aggregate principal amount of Senior Debt Securities of a Series have concurred
in any direction, consent or waiver under this Indenture, Senior Debt
Securities of such Series which are owned by the Company, or any other obligor
on the Senior Debt Securities of such Series or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, or any other obligor on the Senior Debt Securities of
such Series shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction,
consent or waiver only Senior Debt Securities of such Series which the Trustee
knows are so owned shall be so disregarded. Senior Debt Securities of such
Series so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 9.04, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Senior Debt Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, or any such other obligor. Upon request of the
Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Senior Debt Securities of such Series,
if any, known by the Company to be owned or held by or for the account of any
of the above described persons; and, subject to the provisions of Section 8.01,
the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the
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facts therein set forth and of the fact that all Senior Debt Securities of such
Series not listed therein are outstanding for the purposes of any such
determination.
SECTION 9.05. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 9.01, of the taking of any action by the
holders of the percentage in aggregate principal amount of the Senior Debt
Securities of a Series specified in this Indenture in connection with such
action, any holder of a Senior Debt Security of such Series the serial number
of which is shown by the evidence to be included in the Senior Debt Securities
of such Series the holders of which have consented to such action may, by
filing written notice with the Trustee at its office and upon proof of holding
as provided in Section 9.02, revoke such action so far as concerns such Senior
Debt Security. Except as aforesaid, any such action taken by the holder of any
Senior Debt Security shall be conclusive and binding upon such holder and upon
all future holders and owners of such Senior Debt Security, and of any Senior
Debt Security issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Senior Debt
Security. Any action taken by the holders of the percentage in aggregate
principal amount of the Senior Debt Securities of a Series specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Senior Debt Securities of such
Series.
ARTICLE TEN.
MEETINGS OF HOLDERS OF SENIOR DEBT SECURITIES.
SECTION 10.01. A meeting of holders of Senior Debt Securities of any
or all Series may be called at any time and from time to time pursuant to the
provisions of this Article Ten for any of the following purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other
action authorized to be taken by holders pursuant to any of the
provisions of Article Seven;
(2) to remove the Trustee with respect to one or more or
all Series and appoint a successor trustee pursuant to the provisions
of Article Eight;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
11.02; or
(4) to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate principal amount
of the Senior Debt Securities of any or all
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Series under any other provision of this Indenture or under applicable
law.
SECTION 10.02. The Trustee may at any time call a meeting of holders
of Senior Debt Securities to take any action specified in Section 10.01, to be
held at such time and at such place as the Trustee shall determine. Notice of
every meeting of the holders of any or all Series, setting forth the time and
the place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed to such holders of Senior Debt Securities at
their addresses as shown by the Senior Debt Security Register not less than 20
nor more than 60 days prior to the date fixed for the meeting.
SECTION 10.03. In case at any time the Company, pursuant to a
resolution of its Board of Directors, shall have requested the Trustee to call
a meeting of holders of any or all Series, or the holders of at least 10 per
cent in aggregate principal amount of the Senior Debt Securities of the Series
then outstanding with respect to which a meeting is proposed to be called shall
have requested the Trustee to call a meeting of the holders of the applicable
Series, to take any action authorized in Section 10.01 by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or the holders
of Senior Debt Securities of the applicable Series in the amount above
specified may determine the time and the place for such meeting and may call
such meeting by mailing notice thereof as provided in Section 10.02.
SECTION 10.04. To be entitled to vote at any meeting of holders of
Senior Debt Securities of any or all Series a person shall (a) be a holder of
one or more Senior Debt Securities with respect to which such meeting was
called, or (b) be a person appointed by an instrument in writing as proxy by a
holder of one or more Senior Debt Securities with respect to which such meeting
was called. The only persons who shall be entitled to be present or to speak
at any meeting of holders of Senior Debt Securities of any or all Series shall
be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 10.05. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of holders of Senior Debt Securities, in regard to
proof of the holding of Senior Debt Securities and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of
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Senior Debt Securities shall be proved in the manner specified in Section 9.02
and the appointment of any proxy shall be proved in the manner specified in
said Section 9.02 or by having the signature of the person executing the proxy
witnessed or guaranteed by any bank, banker or trust company.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by holders as provided in Section 10.03, in which case the Company
or the holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by vote of the holders of a majority in
aggregate principal amount of the Senior Debt Securities represented at the
meeting and entitled to vote.
Subject to the provisions of Section 9.04, at any meeting each holder
or proxy shall be entitled to one vote for each $1,000 (unless otherwise
provided in the related Series Supplement) principal amount of Senior Debt
Securities of the Series entitled to vote held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Senior Debt Security challenged as not outstanding and ruled by the chairman of
the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Senior Debt Securities of the Series
entitled to vote held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other holders. Any meeting
of holders duly called pursuant to the provisions of Section 10.02 or 10.03 may
be adjourned from time to time, and the meeting may be held as so adjourned
without further notice.
At any meeting of holders of Senior Debt Securities of any or all
Series, the presence of persons holding or representing Senior Debt Securities
of the applicable Series in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the persons holding or representing a majority of the Senior Debt
Securities of the applicable Series represented at the meeting may adjourn such
meeting with the same effect as though a quorum had been present.
SECTION 10.06. The vote upon any resolution submitted to any meeting
of holders shall be by written ballots on which shall be subscribed the
signatures of the holders or proxies and the serial number or numbers of the
Senior Debt Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of holders shall be prepared by the secretary of the meeting and
there shall be attached to said
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record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 10.02. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. The Company, when authorized by resolutions of its
Board of Directors, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Twelve;
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as its Board of Directors and the
Trustee shall consider to be for the protection of the holders of any Series of
Senior Debt Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture as
herein set forth; provided, however, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture may
provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the right of
the holders of a majority in aggregate principal amount of the Senior Debt
Securities of a Series to waive such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture; to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee; or to make such other provisions in regard to
matters or questions
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arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided that such action shall not adversely
affect the interests of the holders of the Senior Debt Securities; and
(d) to set forth the terms of any Series that has not theretofore
been authorized by a Series Supplement.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 11.01 may be executed by the Company and the Trustee without the
consent of the holders of any of the Senior Debt Securities at the time
outstanding, notwithstanding any of the provisions of Section 11.02.
SECTION 11.02. With the consent (evidenced as provided in Section
9.01) of the holders of not less than a majority in aggregate principal amount
of the Senior Debt Securities of each Series to be affected at the time
outstanding, the Company, when authorized by resolutions of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Senior Debt Securities of such Series; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Senior Debt
Securities, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any premium payable
upon the redemption thereof, without the consent of the holder of each Senior
Debt Security so affected, (ii) reduce the aforesaid percentage of Senior Debt
Securities of any Series, the consent of the holders of which is required for
any such supplemental indenture, without the consent of the holders of all
Senior Debt Securities of such Series then outstanding, or (iii) modify any of
the provisions of this Section or Section 7.06, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the holder of each Senior Debt
Security affected thereby.
Upon the request of the Company, accompanied by a copy of resolutions
of its Board of Directors certified by the Secretary or an Assistant Secretary
of the Company authorizing the execution of
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any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the holders as aforesaid, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the holders under this
Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 11.02, the
Company shall mail to the holders to which such supplemental indenture relates
a notice, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 11.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Eleven, this Indenture shall be and
be deemed to be modified and amended in accordance therewith with respect to
each Series of Senior Debt Securities affected thereby or all Senior Debt
Securities, as the case may be, and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Senior Debt Securities of each Series affected
thereby shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Section 8.01, may receive an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
complies with the provisions of this Article Eleven and that all conditions
precedent thereto have been met.
SECTION 11.04. Senior Debt Securities authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article Eleven or after any action taken at a meeting of holders of Senior
Debt Securities pursuant to Article Ten, may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture or as to any such action. New
Senior Debt Securities so modified as to conform, in the opinion of the Trustee
and the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture or reflecting such
action may be prepared by the Company, and such Senior Debt Securities may be
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authenticated by the Trustee and delivered in exchange for the Senior Debt
Securities then outstanding.
ARTICLE TWELVE.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 12.01. (a) Nothing contained in this Indenture or in any of
the Senior Debt Securities shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale or conveyance of the
property of the Company as an entirety or substantially as an entirety to any
other corporation authorized to acquire and operate the same; provided,
however, and the Company hereby covenants and agrees, that any such
consolidation, merger, sale or conveyance shall be upon the condition that (a)
immediately after such consolidation, merger, sale or conveyance, the
corporation (whether the Company or such other corporation) formed by or
surviving any such consolidation or merger, or to which such sale or conveyance
shall have been made, shall not be in default in the performance or observance
of any of the terms, covenants and conditions of this Indenture to be kept or
performed by the Company; (b) the corporation (if other than the Company)
formed by or surviving any such consolidation or merger, or to which such sale
or conveyance shall have been made, shall be a corporation organized under the
laws of the United States of America or any state thereof; and (c) the due and
punctual payment of the principal of (and premium, if any) and interest on all
of the Senior Debt Securities, according to their tenor, and the due and
punctual performance and observance of all the covenants and conditions of this
Indenture to be performed, or observed by the Company, shall be expressly
assumed by the corporation formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall have acquired
such property, by supplemental indenture, satisfactory in form to the Trustee,
executed and delivered to the Trustee by the corporation formed by such
consolidation, or into which the Company shall have been merged, or by the
corporation which shall have acquired such property.
SECTION 12.02. In case of any such consolidation, merger, sale or
conveyance in accordance with Section 12.01, such successor corporation shall
succeed to and be substituted for the Company with the same effect as if it had
been named herein as a party, and the Company (including any intervening
successor to either hereunder) shall be relieved of any further obligation
under this Indenture and the Senior Debt Securities; provided, however, that in
the case of a sale or conveyance of the property of the Company (including any
such intervening successor), in connection with which there is no plan
providing for the complete liquidation of the Company (including any such
intervening successor), the Company (including any such intervening successor)
shall continue to be liable on its obligations under this Indenture and the
Senior Debt
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Securities to the extent, but only to the extent, of liability to pay the
principal of and premium, if any, and interest on the Senior Debt Securities at
the time, places and rate, and in the coin or currency, prescribed in this
Indenture and the Senior Debt Securities. Any such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company any or all of the Senior Debt Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of any such successor
corporation, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Senior Debt Securities which previously shall have been signed and delivered by
the officers of the Company to the Trustee for authentication, and any Senior
Debt Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Senior Debt
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Senior Debt Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Senior Debt Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Senior Debt Securities thereafter to be issued as may be appropriate.
SECTION 12.03. The Trustee, subject to the provisions of Sections 8.01
and 8.02, may receive an Officer's Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance
complies with the provisions of this Article Twelve and that all conditions
precedent herein provided relating to such transaction have been complied with.
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 13.01. The Company may terminate its obligation under the
Senior Debt Securities of a Series and this Indenture with respect to such
Senior Debt Securities, except those obligations referred to in the immediately
succeeding paragraph, if at any time (a) the Company shall have delivered to
the Trustee for cancellation all Senior Debt Securities of any Series
theretofore authenticated and delivered (other than any Senior Debt Securities
which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.08) and the Company shall have paid
or caused to be paid all sums payable by it hereunder, or (b) if the Company
has irrevocably deposited or caused to be deposited with the Trustee under the
terms of an irrevocable trust agreement in form and substance satisfactory to
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the Trustee, as trust funds in trust solely for the benefit of the holders of
the Senior Debt Securities of such Series for that purpose, money or direct
non-callable obligations of, or non-callable obligations guaranteed by, the
United States of America for the payment of which guarantee or obligation the
full faith and credit of the United States is pledged ("U.S. Government
Obligations") maturing as to principal and interest in such amounts and at such
times as are sufficient, as verified in a Certificate of a Firm of Independent
Public Accountants, without consideration of any reinvestment of such interest,
to pay principal of and interest or sinking funds on the outstanding Senior
Debt Securities of such Series to maturity or redemption as the case may be,
provided that the Trustee or any paying agent shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of said principal and interest and said sinking fund
with respect to the Senior Debt Securities of such Series. The Company may
make an irrevocable deposit pursuant to this Section 13.01 only if at such time
the Company shall have delivered to the Trustee and any such paying agent an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions herein precedent to the satisfaction and discharge of this Indenture
have been complied with and the Opinion of Counsel further states that the
making of such deposit (i) does not contravene or violate any provision of any
indenture, mortgage, loan agreement or other similar agreement known to such
counsel to which the Company is a party or by which it or any of its property
is bound, and (ii) does not require registration by the deposit referred to
above under the Investment Company Act of 1940, as amended.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.06, 2.08, 5.01, 5.02, 5.05, 6.01, 8.06, 8.10, 13.04 and 13.05 shall
survive until the Senior Debt Securities of such Series are no longer
outstanding. Thereafter, the Company's obligations in Section 8.06, 13.04 and
13.05 shall survive.
After any such irrevocable deposit, the Trustee upon request shall (i)
acknowledge in writing the discharge of the Company's obligations under the
Senior Debt Securities of such Series and this Indenture except for those
surviving obligations specified above, (ii) execute, deliver and file
termination statements, releases and other instruments of satisfaction, release
and discharge with respect to such released security interest and (iii) assign,
transfer and deliver to the Company all the Trustee's rights and interest in
and to that portion of the trust estate so released.
SECTION 13.02. Subject to the provisions of Section 13.04, all moneys
or U.S. Government Obligations deposited with the Trustee pursuant to Section
13.01 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company acting as its own paying
agent), to the holders of the particular Senior Debt Securities of the
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applicable Series, for the payment or redemption of which such moneys or U.S.
Government Obligations have been deposited with the Trustee, of all sums due
and to become due thereon for principal and interest and premium, if any, and
Sinking Fund payments.
SECTION 13.03. In connection with the satisfaction and discharge of
this Indenture with respect to the Senior Debt Securities of any Series, all
moneys then held by any paying agent under the provisions of this Indenture
with respect to such Series of Senior Debt Securities shall, upon demand of the
Company, be repaid to it or paid to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such moneys.
SECTION 13.04. Any moneys deposited with the Trustee or any paying
agent for the payment of the principal of and premium, if any, or interest on
Senior Debt Securities of any Series and not applied but remaining unclaimed by
the holders of Senior Debt Securities of such Series for three years after the
date upon which such payment shall have become due, shall be held uninvested
and without liability for interest and shall be repaid to the Company by the
Trustee or by such paying agent on demand; and the holder of any of the Senior
Debt Securities of the applicable Series entitled to receive such payment shall
thereafter look only to the Company for the payment thereof and all liability
of the Trustee or any paying agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once a week for two successive weeks (in each case on any day of
the week) in an authorized newspaper a notice that said moneys have not been so
applied and that after a date named therein any unclaimed balance of said
moneys then remaining will be returned to the Company.
SECTION 13.05. If the Trustee is unable to apply any money or U.S.
Government Obligations in accordance with Section 13.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Senior Debt Securities of
any Series affected thereby shall be revived and reinstated as though no
deposit had occurred pursuant to Section 13.01, until such time as the Trustee
is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 13.01; provided, however, that if the Company has made
any payment of interest on or principal of any Senior Debt Securities of such
Series because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the holders of such Senior Debt Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee.
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ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 14.01. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Senior Debt Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any
successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in the Senior Debt
Securities of any Series or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in the
Senior Debt Securities of any Series or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of such Senior Debt Securities.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 15.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of any
corporation that shall at that time be the successor of the Company.
SECTION 15.03. The Company by instrument in writing executed by
authority of its Board of Directors and delivered to the Trustee may surrender
any of the powers or rights reserved to the Company and thereupon such power or
right so surrendered shall terminate both as to the Company and as to any
successor corporation.
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SECTION 15.04. Any notice or demand which by any provisions of this
Indenture is required or permitted to be given or served by the Trustee or by
the holders of Senior Debt Securities to or on the Company shall be delivered
by hand or sent by first-class mail, postage prepaid, addressed (until another
address is filed by the Company with the Trustee), as follows: Centex
Corporation, 3333 Lee Parkway, Dallas, Texas 75219, Attention: Corporate
Secretary. Any notice, direction, request or demand by any holder to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at any corporate trust office of the Trustee.
SECTION 15.05. Where this Indenture provides for notice to holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid, to
each holder affected by such event, at his address as it appears on the Senior
Debt Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case where
notice to holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular holder shall affect
the sufficiency of such notice with respect to other holders, and any notice
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given.
When this Indenture provides for notice in any manner, such notice may
be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to holders of Senior Debt Securities when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.
SECTION 15.06. This Indenture, each indenture supplemental thereto and
each Senior Debt Security shall be deemed to be a contract made under the laws
of the State of Texas, and for all purposes shall be construed in accordance
with the laws of said State, provided that the rights, duties, immunities and
standard of care of the Trustee shall be governed by and construed in
accordance with the laws of the United States of America.
SECTION 15.07. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent
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<PAGE> 83
(including any covenant compliance with which constitutes a condition
precedent) provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with, except that
in the case of any such application or demand as to which the furnishing of
such document is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 15.08. In any case where the date of maturity of interest on
or principal of the Senior Debt Securities or the date fixed for redemption of
any Senior Debt Security shall not be a business day then payment of interest
or principal and premium, if any, to the holders need not be made on such date,
but may be made on the next succeeding business day with the same force and
effect as if made on the date of maturity or the date fixed for redemption, and
no interest shall accrue for the period after such date.
SECTION 15.09. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included in this Indenture by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such
required provision shall control.
SECTION 15.10. In case any provision in this Indenture or in the
Senior Debt Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 15.11. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 15.12. Unless specified otherwise in the Series Supplement,
interest on the Senior Debt Securities shall be
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<PAGE> 84
computed on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 15.13. Texas Commerce Bank National Association hereby
accepts the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, CENTEX CORPORATION has caused this Indenture to be
signed by its President or one of its Vice Presidents, and its corporate seal
to be affixed hereunto, and the same to be attested by its Secretary or an
Assistant Secretary, and TEXAS COMMERCE BANK NATIONAL ASSOCIATION has caused
this Indenture to be signed by one of its duly authorized trust officers and
its corporate seal to be affixed hereunto, and the same to be duly attested,
all as of the day and year first above written.
CENTEX CORPORATION
By:
------------------------------------
Michael S. Albright,
Vice President
ATTEST:
- ---------------------------------------
David A. Greenblatt, Associate
General Counsel and Assistant
Secretary
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION,
as Trustee
By:
------------------------------------
Title:
--------------------------------
ATTEST:
- ---------------------------------------
[Name and title]
-69-
<PAGE> 85
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Michael S. Albright and David A.
Greenblatt, known to me to be the persons and officers whose names are
subscribed to the foregoing instrument and acknowledged to me that the same was
the act of the said CENTEX CORPORATION, a Nevada corporation, and that they
executed the same as the act of said corporation for the purposes and
consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of ____________,
199__.
-------------------------------------------
Notary Public in and for the State of Texas
My commission expires:
-------------------------------------------
(Type or print name)
- ---------------------------
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared [Name of Officers], known to me to be
the persons and officers whose names are subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said TEXAS COMMERCE
BANK NATIONAL ASSOCIATION, a national banking association, and that they
executed the same as the act of said banking association for the purposes and
consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of ____________,
199__.
-------------------------------------------
Notary Public in and for the State of Texas
My commission expires:
-------------------------------------------
(Type or print name)
- ----------------------
-70-
<PAGE> 1
EXHIBIT 4.4
[Form of July 21, 1995]
[Form of Supplemental Indenture. A Supplemental Indenture entered into between
the Company and the Trustee with respect to each Series of Senior Debt
Securities issued pursuant to the Indenture, in definitive, executed form, will
be filed by the Company with the Commission as an Exhibit to a current Report
on Form 8-K shortly after the closing date for the issuance of each such Series
of Senior Debt Securities.]
CENTEX CORPORATION
Issuer
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
SERIES _____ SUPPLEMENT
Dated as of __________, 199___
to
INDENTURE
Dated as of ___________, 199___
$_______________________
[SENIOR DEBT SECURITIES]
<PAGE> 2
SERIES ___________ SUPPLEMENT, dated as of _____________, 199___,
between CENTEX CORPORATION, a Nevada corporation (together with its successors
and assigns as provided in the Indenture referred to below, the "Company"), and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association
(together with its successors in trust thereunder as provided in the Indenture
referred to below, the "Trustee"), as trustee under an Indenture dated as of
__________________, 199___ (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 an indenture supplemental to the
Indenture for the purpose of authorizing a Series of Senior Debt Securities and
to specify certain terms of 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 with an aggregate principal amount of
$___________________ to be known as the Company's [Senior Debt Securities],
(the "[Senior Debt Securities]") , and the Company and the Trustee are
executing and delivering this Series _____ Supplement in order to provide for
the [Senior Debt Securities].
SECTION 1. Designation.
The [Senior Debt Securities] shall be designated as the Company's
[Senior Debt Securities].
SECTION 2. Date of [Senior Debt Securities].
The [Senior Debt Securities] which are authenticated and delivered by
the Trustee to or upon the order of the Company on the Closing Date for the
[Senior Debt Securities] shall be dated __________________, _____. All other
[Senior Debt Securities] which are authenticated after the Closing Date for any
other purpose under the Indenture shall be dated the date of their
authentication. For the purposes of this Section 2, "Closing Date" shall mean
the date on which the [Senior Debt Securities] are first executed,
authenticated and delivered.
SECTION 3. Aggregate Principal Amount.
The aggregate principal amount of [Senior Debt Securities] that may be
authenticated and delivered under the Indenture and this Series _____
Supplement is limited to $_____________________.
SECTION 4. Interest Rate.
The [Senior Debt Securities] shall bear interest at the rate of
______% per annum.
-2-
<PAGE> 3
SECTION 5. Interest Payment Dates.
The interest payment dates for the [Senior Debt Securities] are
[_________________], commencing on ___________________, 199___.
SECTION 6. Record Date.
The record date with respect to an interest payment date shall be the
_____ day of the calendar month preceding the month in which such interest
payment date falls, or in the case of defaulted interest, the close of business
on any special record date.
SECTION 7. Denominations of [Senior Debt Securities].
The [Senior Debt Securities] are issuable in denominations of
$_______________ and any integral thereof.
SECTION 8. Currency of Issuance and Payments.
The [Senior Debt Securities] shall be issued in the currency of
________________ and shall be paid in such currency.
[SECTION 9. Redemption Date and Price.
The [Senior Debt Securities] may be redeemed [in full] [in whole or in
part] at the Company's option at _____% of the principal amount thereof, plus
accrued interest, if redeemed prior to ________________, 199___, and at the
following prices (expressed as percentages of the principal amount) if redeemed
during the twelve month period beginning ________ of the years indicated below,
together in each case with interest accrued to the redemption date:
Redemption
Year Price
---- ----------
19___ $_________________
19___ $_________________
Beginning ________________, 19__, the Company may redeem the [Senior
Debt Securities] at 100% of the principal amount thereof together with interest
accrued to the redemption date.]
[SECTION 10. Sinking Fund.
As and for a Sinking Fund for the retirement of the [Senior Debt
Securities], the Company covenants that on or before ___________________,
19___, and annually on or before _____________ of each year thereafter to and
including ___________________________, ________, it will pay to the Trustee a
sum in cash sufficient to retire by redemption at a Sinking Fund redemption
price set forth below, on the next succeeding ______________,
$_________________ principal amount of the [Senior
- 3 -
<PAGE> 4
Debt Securities]; provided, however, that in any such year in which
_________________ is not a business day, such payment shall be made to the
Trustee on the last business day preceding such ___________________________.
In any year, the Company may, at its sole option, increase the payment required
to be made pursuant to this Section 10 for such year by an amount not to exceed
$_______________________; provided that such increase shall be an integral
multiple of $____________.
The Sinking Fund redemption price will be equal to the principal
amount of the [Senior Debt Securities] to be redeemed pursuant to this Section
10, together with accrued interest to the date fixed for redemption.]
SECTION 11. Form of [Senior Debt Securities].
The [Senior Debt Securities] shall be in the form attached hereto as
Exhibit A.
SECTION 12. Maturity Date.
The [Senior Debt Securities] will mature and be payable in accordance
with their terms on __________________, 19___.
SECTION 13. Book-Entry Matters.
Pursuant to Section 2.02 of the Indenture, the following provisions
shall apply to the [Senior Debt Securities], notwithstanding anything to the
contrary in the Indenture:
(a) The [Senior Debt Securities] will be issued in fully
registered form only. However, except as provided in paragraphs (d),
(e) and (f) of this Section 13, the registered owner of all of the
[Senior Debt Securities] initially shall be The Depository Trust
Company ("DTC") or its nominee, and such [Senior Debt Securities]
initially shall be registered in the name of DTC or its nominee.
Payment of the principal of or interest on [Senior Debt Securities]
registered in the name of DTC or its nominee shall be made in the
manner and at the address(es) specified in the Letter of
Representations, dated ____________, 199__, from the Company and the
Trustee to DTC, a copy of which is attached hereto as Exhibit B. DTC
(and any successor securities depository) and its (or their)
participating institutions (collectively "Participants") shall
maintain a book- entry registration and transfer system with respect
to ownership of beneficial interests in the [Senior Debt Securities]
(the "Book-Entry System").
(b) The [Senior Debt Securities] shall be initially
issued in the form of a separate, single, authenticated, fully
registered [Senior Debt Security] (the "Global Security") which (i)
pursuant to Section 2.01 of the Indenture, need not be in the form of
a lithographed or engraved certificate, but may be typewritten or
printed on ordinary paper or such paper as the Trustee may reasonably
request, (ii) shall represent
- 4 -
<PAGE> 5
and be denominated in an amount equal to 100% of the aggregate
principal amount of the [Senior Debt Securities] issued under this
Series _____ Supplement, (iii) shall be executed by the Company and
authenticated by the Trustee in accordance with the provisions of the
Indenture, and delivered by the Trustee to DTC or its nominee or an
approved custodian for DTC (which may include the Trustee), (iv) shall
be registered in the Senior Debt Security Register in the name of Cede
& Co., as nominee of DTC, and (v) shall contain the following legend
on the face thereof:
Unless this [Senior Debt Security] is presented by an
authorized representative of The Depository Trust Company, a
New York corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered holder hereof, Cede & Co., has an
interest herein.
Unless and until it is exchanged in whole or in part for [Senior Debt
Securities] in definitive certificated form, the Global Security
representing the [Senior Debt Securities] may not be transferred
except as a whole by DTC to a nominee of DTC or by a nominee of DTC to
DTC or another nominee of DTC or by DTC or any such nominee to a
successor securities depository or a nominee of any such successor
securities depository.
(c) The Trustee and the Company may treat DTC or its
nominee, or any successor securities depository or nominee thereof
(collectively, the "Depository"), as the sole and exclusive owner of
the [Senior Debt Securities] registered in its name for the purposes
of payment of the principal of or interest on the [Senior Debt
Securities], giving any notice permitted or required to be given to
holders of the [Senior Debt Securities] under the Indenture or this
Series _____ Supplement, registering the transfer of the [Senior Debt
Securities], obtaining any consent or other action to be taken by
holders of the [Senior Debt Securities] and for all other purposes
whatsoever, and neither the Trustee nor the Company shall be affected
by any notice to the contrary. Neither the Company nor the Trustee
shall have any responsibility or obligation to any Participant, any
person claiming a beneficial ownership interest in the [Senior Debt
Securities] under or through the Depository or any Participant, or any
other person which is not shown on the Senior Debt Security Register
as being a holder of the [Senior Debt Securities], with respect to (i)
the accuracy of any records maintained by
- 5 -
<PAGE> 6
the Depository or any Participant; (ii) the payment by the Depository
to any Participant of any amount in respect of the principal of or
interest on the [Senior Debt Securities]; or (iii) the payment by any
Participant to any owner of a beneficial ownership interest in the
[Senior Debt Securities] in respect of the principal of or interest on
the [Senior Debt Securities]. The Trustee shall pay all principal of
and interest on the [Senior Debt Securities] only to or upon the order
of the registered holder or holders of the [Senior Debt Securities],
as shown in the Senior Debt Security Register, and all such payments
shall be valid and effective to fully satisfy and discharge the
Company's obligations with respect to the principal of and interest on
the [Senior Debt Securities] to the extent of the sum or sums so paid.
No person other than a holder of the [Senior Debt Securities], as
shown in the Senior Debt Security Register, shall receive an
authenticated [Senior Debt Security] evidencing the obligation of the
Company to make payment of the principal of and interest on the
[Senior Debt Securities] pursuant to the Indenture and this Series
____ Supplement. Upon delivery by DTC to the Trustee of written
notice to the effect that DTC has determined to substitute a new
nominee for Cede & Co., and subject to the provisions of the Indenture
and this Series _____ Supplement, the word "Cede & Co.", as used in
this Series _____ Supplement, shall refer to each new nominee of DTC.
(d) In the event that after the occurrence of an Event of
Default that has not been cured or waived, holders of a majority in
aggregate principal amount of the beneficial interests in the [Senior
Debt Securities], as reflected in the books and records of the
Depository, notify the Trustee, through the Depository or any
Participant, that the continuation of the Book-Entry System is no
longer in the best interests of such holders of beneficial interests
in the [Senior Debt Securities], then the Trustee shall notify the
Depository and the Company, and the Depository will notify the
Participants of the availability through the Depository of definitive
certificated [Senior Debt Securities]. In such event, the Company
shall execute, and the Trustee, upon receipt of a written order of the
Company, signed by its President or a Vice President and by its
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary (an
"Issuer Order"), for the authentication and delivery of definitive
certificated [Senior Debt Securities], will authenticate and deliver
[Senior Debt Securities] in definitive certificated form, in any
authorized denominations, all pursuant to the provisions of the
Indenture, to the person or persons specified to the Trustee in
writing by the Depository in the aggregate principal amount of the
Global Security and in exchange for such Global Security.
(e) If at any time the Depository notifies the Company
that it is unwilling or unable to continue as Depository for the
[Senior Debt Securities] or if at any time the Depository
- 6 -
<PAGE> 7
shall no longer be registered as a clearing agency in good standing
under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a
successor Depository with respect to the [Senior Debt Securities]. If
a successor Depository for the [Senior Debt Securities] is not
appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, the Company will
execute, and the Trustee, upon receipt of an Issuer Order for the
authentication and delivery of definitive certificated [Senior Debt
Securities], will authenticate and deliver [Senior Debt Securities] in
definitive certificated form, in any authorized denominations, all
pursuant to the provisions of the Indenture, to the person or persons
specified to the Trustee in writing by the Depository in the aggregate
principal amount of the Global Security and in exchange for such
Global Security.
(f) The Company may at any time and in its sole
discretion determine that the [Senior Debt Securities] shall no longer
be represented by a Global Security. In such event the Company will
execute, and the Trustee, upon receipt of an Issuer Order for the
authentication and delivery of definitive certificated [Senior Debt
Securities], will authenticate and deliver [Senior Debt Securities] in
definitive certificated form, in any authorized denominations, all
pursuant to the provisions of the Indenture, to the person or persons
specified to the Trustee in writing by the Depository in the aggregate
principal amount of the Global Security and in exchange for such
Global Security.
(g) Upon the exchange of a Global Security for [Senior
Debt Securities] in definitive certificated form, in authorized
denominations, such Global Security shall be cancelled by the Trustee.
(h) Whenever the Depository requests the Company and the
Trustee to do so, the Trustee and the Company will cooperate with the
Depository in taking appropriate action after reasonable notice to (i)
make available one or more separate Global Securities evidencing the
[Senior Debt Securities] to any Participant having [Senior Debt
Securities] credited to its account at the Depository, or (ii) arrange
for another Depository to maintain custody of the Global Security or
Securities evidencing the [Senior Debt Securities].
(i) In connection with any notice or other communication
to be provided to holders of the [Senior Debt Securities] pursuant to
the Indenture and this Series _____ Supplement by the Company or the
Trustee with respect to any consent or other action to be taken by
holders of the [Senior Debt Securities], the Company or the Trustee,
as the case may be, shall establish a record date for such consent or
other action and give the Depository notice of such record date not
less than 15 calendar days in advance of such record date to the
- 7 -
<PAGE> 8
extent possible. Such notice to the Depository shall be given only so
long as a Depository or its nominee is the sole record holder of the
[Senior Debt Securities].
SECTION 14. Certain Defined Terms.
All terms used in this Series _____ Supplement which are defined in
the Indenture, either directly or by reference therein, have the respective
meanings assigned to them therein, except to the extent such terms are defined
in this Series _____ Supplement or the context clearly requires otherwise.
SECTION 15. Counterparts.
This Series _____ Supplement may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 16. Governing Law.
This Series _____ Supplement and each [Senior Debt Security] issued
hereunder shall be deemed to be a contract made under the laws of the State of
Texas, and for all purposes shall be construed in accordance with the laws of
said State, provided that the rights, duties, immunities and standard of care
of the Trustee shall be governed by and construed in accordance with the laws
of the United States of America.
SECTION 17. Acceptance of Trusts.
Texas Commerce Bank National Association hereby accepts the trusts in
this Series _____ Supplement declared and provided, upon the terms and
conditions herein and in the Indenture set forth.
SECTION 18. Ratification of Indenture.
As supplemented by this Series _____ Supplement, the Indenture is in
all respects ratified and confirmed and the Indenture as so supplemented by
this Series _____ Supplement shall be read, taken and construed as one and the
same instrument.
[Insert additional provisions as necessary]
- 8 -
<PAGE> 9
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Series _____ Supplement to be duly executed by their respective officers
thereunto duly authorized and their respective seals duly attested to be
hereunto affixed all as of the day and year first above written.
CENTEX CORPORATION
[SEAL] Company
Attest: By:
-----------------------------------
Title:
--------------------------------
---------------------------------------
Title:
---------------------------------
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
[SEAL] Trustee
Attest: By:
-----------------------------------
Title:
--------------------------------
---------------------------------------
Title:
---------------------------------
- 9 -
<PAGE> 10
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared _________________, known to me to be the
person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said CENTEX CORPORATION, a
Nevada corporation, and that he executed the same as the act of said
corporation for the purposes and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
_______________________, 19_____.
-------------------------------------
Notary Public in and for the
State of Texas
My commission expires:
--------------------------------------
[Type or print name]
---------------------------------------
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared __________________, known to me to be
the person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, a national banking association, and that he executed the
same as the act of said banking association for the purposes and consideration
therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
_______________________, 19___.
-------------------------------------
Notary Public in and for the
State of Texas
My commission expires:
-------------------------------------
[Type or print name]
---------------------------------------
- 10 -
<PAGE> 1
CENTEX CORPORATION
3333 LEE PARKWAY
DALLAS, TEXAS 75219
July 21, 1995
Centex Corporation
3333 Lee Parkway
Dallas, Texas 75219
RE: SENIOR AND SUBORDINATED DEBT SECURITIES
Gentlemen:
I am Vice President, Chief Legal Officer and Secretary of Centex
Corporation, a Nevada corporation (the "Company"), and have acted in such
capacities in connection with the proposed issuance and sale by the Company of
up to $100,000,000 aggregate principal amount of various series of debt
securities, which may be senior debt securities or subordinated debt securities
(collectively, "Debt Securities"), to certain underwriters to be named later
(the "Underwriters"), such sales to be made in accordance with the terms of an
Underwriting Agreement (the "Underwriting Agreement") to be entered into by the
Company and a representative or representatives of the Underwriters (the
"Representative"), in substantially the form filed as an Exhibit to the
Registration Statement (as such term is hereinafter defined), and a Pricing
Agreement (the "Pricing Agreement") with respect to each series of Debt
Securities to be entered into by the Company and the Representative, on behalf
of itself and the other Underwriters, if any, named therein, in substantially
the form filed as an Exhibit to the Registration Statement. Each series of
Debt Securities will be issued under:
(i) an Indenture (the "Senior Indenture") to be entered into
by and between the Company and Texas Commerce Bank National
Association, as trustee (the "Senior Trustee"), relating to the
Company's senior debt securities, various series (the "Senior Debt
Securities"), a form of which Senior Indenture is filed as an Exhibit
to the Registration Statement, or
(ii) an Indenture (the "Subordinated Indenture") dated as of
March 12, 1987, by and between the Company and Texas Commerce Bank
National Association, as trustee (the "Subordinated Trustee"),
relating to the Company's subordinated debt securities, various series
(the "Subordinated Debt Securities"), which Subordinated Indenture is
incorporated by reference as an Exhibit to the Registration Statement,
and in either case a Supplemental Indenture (the "Supplemental Indenture") with
respect to each series of Senior or Subordinated Debt Securities to be entered
into by the Company and the Senior Trustee or the Subordinated Trustee, as
applicable, in substantially the forms filed or incorporated by reference as
Exhibits to the Registration Statement.
<PAGE> 2
Centex Corporation
July 21, 1995
Page 2
As Vice President, Chief Legal Officer and Secretary of the Company, I
have participated in and am familiar with the corporate proceedings of the
Company relating to the preparation of the Company's Registration Statement on
Form S-3 filed with the Securities and Exchange Commission (the "Commission")
on this date (the "Registration Statement"), providing for the registration of
the Debt Securities for sale to the Underwriters from time to time under the
Securities Act of 1933, as amended (the "1933 Act"), and Rule 415 promulgated
thereunder.
In connection with the foregoing, I have researched such questions of
law and examined the originals or copies of the Registration Statement, the
Subordinated Indenture, and the forms of Underwriting Agreement, Pricing
Agreement, Senior Indenture and Supplemental Indentures filed or incorporated
by reference as Exhibits to the Registration Statement, and such corporate
records, agreements or other instruments of the Company and other instruments
and documents as I have deemed relevant and necessary to require as a basis for
the opinion hereinafter expressed. As to various questions of fact material to
such opinion, I have, where relevant facts were not independently established,
relied upon statements of other officers of the Company, whom I believe to be
responsible.
Based upon the foregoing and in reliance thereon, I advise you that in
my opinion when (i) the series designation with respect to a series of Debt
Securities to be sold by the Company to the Underwriters and the other matters
relating thereto shall have been approved by the Board of Directors of the
Company (or a duly appointed committee thereof), (ii) the Registration
Statement shall have become effective under the 1933 Act, (iii) the
Underwriting Agreement, Pricing Agreement, Senior Indenture, if applicable, and
Supplemental Indenture with respect to such series of Debt Securities shall
have been authorized, executed and delivered by the parties thereto in
substantially the forms filed or incorporated by reference, as the case may be,
as Exhibits to the Registration Statement, and (iv) the Debt Securities of such
series shall have been issued, executed, authenticated, delivered and sold in
accordance with the provisions of the Senior Indenture or the Subordinated
Indenture, as applicable, and the Underwriting Agreement, Pricing Agreement and
Supplemental Indenture relating to the Debt Securities of such series, the Debt
Securities of such series will be validly issued and will constitute valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited by
equitable principles which may limit the availability of certain equitable
remedies (such as specific performance) in certain instances and applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws related to
or affecting creditors' rights generally.
The opinion expressed above is subject to the qualification that I am
a member of the Bar of the State of Texas and such opinion is limited to the
laws of the State of Texas, the United States of America and, to the extent
relevant to the opinion expressed above, the General Corporation Law of the
State of Nevada (based solely upon a reading of such statute and without
consideration of any judicial or administrative interpretations thereof).
<PAGE> 3
Centex Corporation
July 21, 1995
Page 3
I hereby consent to the reference to myself under the caption "Legal
Opinions" in the Prospectus included in the Registration Statement and to the
filing of this opinion as Exhibit 5.1 to the Registration Statement. The
foregoing, however, shall not constitute an admission by me that I am an expert
as provided for in Sections 7 and 11 of the 1933 Act.
Very truly yours,
/s/ RAYMOND G. SMERGE
Raymond G. Smerge
Vice President,
Chief Legal Officer and Secretary
<PAGE> 1
EXHIBIT 12.1
Centex Corporation
Ratio of Earnings to Fixed charges
EXCLUDING CMO'S & SAVINGS AND LOAN
(dollars in thousands)
<TABLE>
<CAPTION>
Year Year Year Year Year
Ended Ended Ended Ended Ended
3/31/95 3/31/94 3/31/93 3/31/92 3/31/91
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Fixed Charges
Interest incurred, net 33,014 29,683 22,108 22,140 27,423
Illinois Cement Co. and Texas-Lehigh
Cement Co. interest expense - 290 638 1,184 1,577
one-third of rentals 5,162 4,060 2,634 2,131 1,808
-------- -------- -------- -------- --------
38,176 34,033 25,380 25,455 30,808
======== ======== ======== ======== ========
Earnings
Consolidated net income 92,248 85,162 61,038 34,557 43,605
Add (deduct):
Consolidated provision for income taxes 53,540 49,851 30,721 11,295 12,977
Fixed charges 38,176 34,033 25,380 25,455 30,808
CTX Mortgage & Subs' (earnings)/loss
before taxes & cumulative effect (1,442) (71,062) (48,035) (20,019) (8,412)
CTX Holding & TTSB EBT (7,978) (2,565) (3,027) (2,115) (1,254)
-------- -------- -------- -------- --------
174,544 95,419 66,077 49,173 77,724
======== ======== ======== ======== ========
Ratio of earnings to fixed charges 4.57 2.80 2.60 1.93 2.52
======== ======== ======== ======== ========
</TABLE>
<PAGE> 2
Ratio of Earnings to Fixed Charges
INCLUDING CMO'S & SAVINGS AND LOAN
(dollars in thousands)
<TABLE>
<CAPTION>
Year Year Year Year Year
Ended Ended Ended Ended Ended
3/31/95 3/31/94 3/31/93 3/31/92 3/31/91
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Fixed charges
Total Interest Expense 58,771 68,856 63,721 67,838 91,747
Illinois Cement Co. and Texas-Lehigh
Cement Co. interest expense - 290 638 1,184 1,577
One-third of rentals 5,162 4,060 2,634 2,131 1,808
External interest (CMO'S) 1,267 2,286 4,429 6,732 7,729
Amortization of discount and
capitalized expense (CMO'S) 136 574 829 450 206
-------- -------- -------- -------- --------
65,336 76,066 72,251 78,335 103,067
======== ======== ======== ======== ========
Earnings
Consolidated net income 92,248 85,162 61,038 34,557 43,605
Add (deduct):
Consolidated provision for income taxes 53,540 49,851 30,721 11,295 12,977
Fixed charges 65,336 76,066 72,251 78,335 103,067
-------- -------- -------- -------- --------
211,124 211,079 164,010 124,187 159,649
======== ======== ======== ======== ========
Ratio of earnings to fixed charges 3.23 2.77 2.27 1.59 1.55
======== ======== ======== ======== ========
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated May
12, 1995 which appears at page 39 of Centex Corporation's 1995 Annual Report to
Stockholders, which is incorporated by reference in the Joint Annual Report on
Form 10-K of Centex Corporation, 3333 Holding Corporation, and Centex
Development Company, L.P. for the year ended March 31, 1995, and to all
references to our firm included in this Registration Statement on Form S-3.
ARTHUR ANDERSEN LLP
Dallas, Texas
July 19, 1995
<PAGE> 1
EXHIBIT 25.1
********************************************************************************
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE
ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ________ [Not applicable.]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
Not applicable
(Jurisdiction of incorporation or organization
if not a U.S. national bank)
74-0800980
(I.R.S. Employer Identification No.)
712 Main Street, Houston, Texas 77002
(Address of principal executive offices) (Zip code)
Carol Kirkland, 712 Main Street, 26th Floor,
Houston, Texas 77002, (713) 546-2449
(Name, address and telephone number of agent for service)
CENTEX CORPORATION
(Exact name of obligor as specified in its charter)
Nevada 75-0778259
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3333 Lee Parkway, Dallas, Texas 75219
(Address of principal executive offices) (Zip Code)
SENIOR DEBT SECURITIES
(Title of the indenture securities)
********************************************************************************
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee--
A. Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D. C.
Federal Deposit Insurance Corporation,
Washington, D. C.
The Board of Governors of the Federal Reserve System, Washington, D.C.
B. Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
As of July 14, 1995
No such affiliation exists.
See Note, Page 7 hereof.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
Furnish the following information as to each class of voting securities of
the trustee.
Not applicable.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not applicable.
2
<PAGE> 3
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1)
of the Act arises as a result of the trusteeship under any such other
indenture, including a statement as to how the indenture securities
will rank as compared with the securities issued under such other
indenture.
Not applicable.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH OBLIGOR OR
UNDERWRITERS.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not applicable.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
Not applicable.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
Not applicable.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee.
Not applicable.
3
<PAGE> 4
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are so owned or held by the trustee.
Not applicable.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10% or more of the voting securities of the obligor or (2)
is an affiliate, other than a subsidiary, of the obligor, furnish the following
information as to the voting securities of such person.
Not applicable.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50% OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50% or more of the voting securities of the obligor, furnish the
following information as to each class of securities of such person any of
which are so owned or held by the trustee.
Not applicable.
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
Except as noted in the instructions to the Form T-1, if the obligor is
indebted to the trustee, furnish the following information: nature of
indebtedness, amount outstanding and date due.
Not applicable.
4
<PAGE> 5
ITEM 13. DEFAULTS BY THE OBLIGOR.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
As of July 14, 1995
No such default exists or has existed.
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, or is trustee for
more than one outstanding series of securities under the indenture,
state whether there has been a default under any such indenture or
series, identify the indenture or series affected, and explain the
nature of any such default.
As of July 14, 1995
No such default exists or has existed.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable.
ITEM 15. FOREIGN TRUSTEE.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of eligibility.
* 1. A copy of the articles of association of the trustee as now
in effect.
** 2. A copy of the certificate of authority of the trustee to
commence business.
5
<PAGE> 6
** 3. A copy of the certificate of authorization of the trustee to
exercise corporate trust powers issued by the Board of Governors of
the Federal Reserve System under date of January 21, 1948.
*** 4. A copy of the existing bylaws of the trustee.
5. A copy of each indenture referred to in Item 4, if the
obligor is in default. Not Applicable.
6. The consent of the United States institutional trustees
required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
8. A copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act. Not applicable.
9. Foreign trustees are required to file a consent to service
of process on Form F-X. Not applicable.
- -----------------------------
* Incorporated by reference to Exhibit bearing the same Exhibit
number submitted with the Form T-1 of Texas Commerce Bank National
Association with respect to File No. 33-51417.
** Incorporated by reference to Exhibit bearing the same Exhibit
number submitted with the Form T-1 of Texas National Bank of Commerce
of Houston with respect to File No. 2-24599.
*** Incorporated by reference to Exhibit bearing the same Exhibit
number submitted with the Form T-1 of Texas Commerce Bank National
Association with respect to File No. 33-53077.
[Remainder of Page Intentionally Left Blank]
6
<PAGE> 7
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, Texas Commerce Bank National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Houston, and State of Texas, on the 14th day of July, 1995.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Trustee)
By: /s/ WAYNE MENTZ
Wayne Mentz
Assistant Vice President
and Trust Officer
NOTE
The answer to item 2 insofar as such answer relates to what persons
are owners of 10% or more of the voting securities of the obligor, or are
owners of 50% or more of the voting securities of the obligor or are
affiliates, and the amounts and percentages of such securities, if any, owned
by each of the foregoing, respectively, are based upon information furnished to
the trustee by the obligor. While the trustee has no reason to doubt the
accuracy of any such information, it cannot accept any responsibility therefor.
Accordingly, the trustee disclaims responsibility as to the accuracy and
completeness of the information received from the obligor relating to the
answers to item 2.
7
<PAGE> 8
EXHIBIT 6
Securities & Exchange Commission
Washington, D.C. 20549
Gentlemen:
The undersigned is trustee under an Indenture dated as of , 199 ,
as supplemented from time to time by supplemental indentures thereto, to be
entered into between Centex Corporation and Texas Commerce Bank National
Association, as Trustee, entered into in connection with the issuance of its
Senior Debt Securities.
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned hereby consents that reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities & Exchange Commission upon
its request therefor.
Very truly yours,
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ WAYNE MENTZ
Wayne Mentz
Assistant Vice President
and Trust Officer
<PAGE> 1
EXHIBIT 25.2
******************************************************************************
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE
ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO
SECTION 305(b)(2) ________ [Not applicable.]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
Not applicable
(Jurisdiction of incorporation or organization
if not a U.S. national bank)
74-0800980
(I.R.S. Employer Identification No.)
712 Main Street, Houston, Texas 77002
(Address of principal executive offices) (Zip code)
Carol Kirkland, 712 Main Street, 26th Floor,
Houston, Texas 77002, (713) 546-2449
(Name, address and telephone number of agent for service)
CENTEX CORPORATION
(Exact name of obligor as specified in its charter)
Nevada 75-0778259
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3333 Lee Parkway, Dallas, Texas 75219
(Address of principal executive offices) (Zip Code)
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
******************************************************************************
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee--
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D. C.
Federal Deposit Insurance Corporation,
Washington, D. C.
The Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
As of July 14, 1995
No such affiliation exists.
See Note, Page 7 hereof.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
Furnish the following information as to each class of voting securities of
the trustee.
Not applicable.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not applicable.
2
<PAGE> 3
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1)
of the Act arises as a result of the trusteeship under any such other
indenture, including a statement as to how the indenture securities
will rank as compared with the securities issued under such other
indenture.
Not applicable.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH
OBLIGOR OR UNDERWRITERS.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not applicable.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
Not applicable.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
Not applicable.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee.
Not applicable.
3
<PAGE> 4
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are so owned or held by the trustee.
Not applicable.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10% or more of the voting securities of the obligor or (2)
is an affiliate, other than a subsidiary, of the obligor, furnish the following
information as to the voting securities of such person.
Not applicable.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50% OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50% or more of the voting securities of the obligor, furnish the
following information as to each class of securities of such person any of
which are so owned or held by the trustee.
Not applicable.
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
Except as noted in the instructions to the Form T-1, if the obligor is
indebted to the trustee, furnish the following information: nature of
indebtedness, amount outstanding and date due.
Not applicable.
4
<PAGE> 5
ITEM 13. DEFAULTS BY THE OBLIGOR.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
As of July 14, 1995
No such default exists or has existed.
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, or is trustee for
more than one outstanding series of securities under the indenture,
state whether there has been a default under any such indenture or
series, identify the indenture or series affected, and explain the
nature of any such default.
As of July 14, 1995
No such default exists or has existed.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable.
ITEM 15. FOREIGN TRUSTEE.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of eligibility.
* 1. A copy of the articles of association of the trustee as now
in effect.
** 2. A copy of the certificate of authority of the trustee to
commence business.
5
<PAGE> 6
** 3. A copy of the certificate of authorization of the trustee to
exercise corporate trust powers issued by the Board of Governors of
the Federal Reserve System under date of January 21, 1948.
*** 4. A copy of the existing bylaws of the trustee.
5. A copy of each indenture referred to in Item 4, if the
obligor is in default. Not Applicable.
6. The consent of the United States institutional trustees
required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
8. A copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act. Not applicable.
9. Foreign trustees are required to file a consent to service
of process on Form F-X. Not applicable.
- -----------------------------
* Incorporated by reference to Exhibit bearing the same Exhibit
number submitted with the Form T-1 of Texas Commerce Bank National
Association with respect to File No. 33-51417.
** Incorporated by reference to Exhibit bearing the same Exhibit
number submitted with the Form T-1 of Texas National Bank of Commerce
of Houston with respect to File No. 2-24599.
*** Incorporated by reference to Exhibit bearing the same Exhibit
number submitted with the Form T-1 of Texas Commerce Bank National
Association with respect to File No. 33-53077.
[Remainder of Page Intentionally Left Blank]
6
<PAGE> 7
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, Texas Commerce Bank National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Houston, and State of Texas, on the 14th day of July, 1995.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Trustee)
By: /s/ WAYNE MENTZ
Wayne Mentz
Assistant Vice President
and Trust Officer
NOTE
The answer to item 2 insofar as such answer relates to what persons
are owners of 10% or more of the voting securities of the obligor, or are
owners of 50% or more of the voting securities of the obligor or are
affiliates, and the amounts and percentages of such securities, if any, owned
by each of the foregoing, respectively, are based upon information furnished to
the trustee by the obligor. While the trustee has no reason to doubt the
accuracy of any such information, it cannot accept any responsibility therefor.
Accordingly, the trustee disclaims responsibility as to the accuracy and
completeness of the information received from the obligor relating to the
answers to item 2.
7
<PAGE> 8
EXHIBIT 6
Securities & Exchange Commission
Washington, D.C. 20549
Gentlemen:
The undersigned is trustee under an Indenture dated as of March 12, 1987,
as supplemented from time to time by supplemental indentures thereto, between
Centex Corporation and Texas Commerce Bank National Association, as Trustee,
entered into in connection with the issuance of its Subordinated Debt
Securities.
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned hereby consents that reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities & Exchange Commission upon
its request therefor.
Very truly yours,
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ WAYNE MENTZ
Wayne Mentz
Assistant Vice President
and Trust Officer
