<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The
Securities Exchange Act of 1934
Date of Report: June 5, 1995
(Date of earliest event reported)
CENTEX CORPORATION
(Exact name of Registrant as specified in its charter)
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Nevada 1-6776 75-0778259
(State of Incorporation) (Commission File No.) (I.R.S. Employer Identification No.)
3333 Lee Parkway
Suite 1200
Dallas, Texas 75219
(Address of principal executive offices) (Zip Code)
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Registrant's Telephone Number, Including Area Code: (214) 559-6500
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Item 5. Other Events.
Reference is hereby made to the Registrant's Registration Statement on
Form S-3 (File No. 33-59030), filed with the Securities and Exchange Commission
( the "Commission") on March 3, 1993, and declared effective thereby on March
23, 1993 (the "Registration Statement"), pursuant to which the Registrant
registered $100,000,000 aggregate principal amount of its Subordinated Debt
Securities, various series (the "Securities"), for offering and sale in
accordance with applicable provisions of the Securities Act of 1933, as
amended.
On June 5, 1995, the Registrant entered into an Underwriting Agreement
dated such date (the "Underwriting Agreement"), with NationsBanc Capital
Markets, Inc. (the "Underwriter"), relating to the proposed purchase by the
Underwriter of the Securities covered by the Registration Statement. A copy of
the Underwriting Agreement in the form in which it was executed is filed
herewith as Exhibit 1(a).
Pursuant to the Underwriting Agreement, on June 5, 1995, the
Registrant entered into a Pricing Agreement dated such date (the "Pricing
Agreement"), with the Underwriter, relating to $100,000,000 aggregate principal
amount of the Registrant's 7-3/8% Subordinated Debentures due June 1, 2005 (the
"Debentures"), covered by the Registration Statement. The Pricing Agreement
provides for the purchase by the Underwriter on June 9, 1995 of the Debentures
in accordance with the terms set forth therein. A copy of the Pricing
Agreement in the form in which it was executed is filed herewith as Exhibit
1(b).
The Registrant entered into an Indenture dated as of March 12, 1987,
with Texas Commerce Bank National Association, as trustee ("Trustee"), with
respect to the Securities. A copy of the Indenture in the form in which it was
executed is incorporated herein by reference as Exhibit 4(a).
Pursuant to the Indenture, the Registrant and the Trustee entered into
an Indenture Supplement dated as of June 9, 1995, providing for the issuance of
the Debentures (the "Indenture Supplement"). A copy of the Indenture
Supplement in the form in which it was executed is filed herewith as Exhibit
4(b).
Item 7. Financial Statements and Exhibits.
(c) Exhibits
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Exhibit No. Description
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1(a) Underwriting Agreement dated June 5, 1995, between the Registrant and the Underwriter
1(b) Pricing Agreement dated June 5, 1995, between the Registrant and the Underwriter
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4(a) Indenture dated as of March 12, 1987, between the Registrant and the Trustee (incorporated by
reference to Exhibit 4.7 to the Joint Annual Report on Form 10-K of the Registrant, 3333
Holding Corporation and Centex Development Company, L.P. for the fiscal year ended March 31,
1993)
4(b) Indenture Supplement dated as of June 9, 1995, with respect to the Debentures, between the
Registrant and the Trustee
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
CENTEX CORPORATION
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June 9, 1995 By: /S/ MICHAEL S. ALBRIGHT
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Michael S. Albright, Vice President
- Finance and Controller
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INDEX TO EXHIBITS
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Exhibit No. Description Sequential Page
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1(a) Underwriting Agreement dated
June 5, 1995, between the
Registrant and the Underwriter
1(b) Pricing Agreement dated
June 9, 1995, between the
Registrant and the Underwriter
4(a) Indenture dated as of March 12, 1987,
between the Registrant
and the Trustee (incorporated by reference to
Exhibit 4.7 to the Joint Annual
Report on Form 10-K of the Registrant,
3333 Holding Corporation and
Centex Development Company, L.P.
for the fiscal year ended March 31, 1993)
4(b) Indenture Supplement dated as
of June 9, 1995, with respect
to the Debentures, between the
Registrant and the Trustee
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EXHIBIT 1(a)
CENTEX CORPORATION
Subordinated Debt Securities
UNDERWRITING AGREEMENT
June 5, 1995
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 subordinated debt securities (the
"Securities") 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 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
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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. 33-59030) 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 Statement 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 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,
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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;
(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
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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 Indenture will have been duly qualified under
the Trust Indenture Act; and the Securities and 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,
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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, 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
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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;
(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
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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 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
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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 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
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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
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
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<PAGE> 10
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) Hughes & Luce, L.L.P., counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions,
dated the Time of Delivery for such Designated Securities, concerning
such 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;
(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
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<PAGE> 11
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;
(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,
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<PAGE> 12
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;
(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; and 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
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<PAGE> 13
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 or as promptly as practicable after 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 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
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<PAGE> 14
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and no notice of
any intended or potential downgrading in such rating shall have been
received by the Company from any such organization;
(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 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
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<PAGE> 15
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.
(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 (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying 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
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<PAGE> 16
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 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
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<PAGE> 17
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 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
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<PAGE> 18
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 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 Texas.
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<PAGE> 19
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.
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:/S/ VICKI A. ROBERTS
----------------------------
Vicki A. Roberts,
Treasurer
Accepted as of the date hereof
at Dallas, Texas:
NATIONSBANC CAPITAL MARKETS, INC.
By: /S/ STUART B. GLEICHENHAUS
---------------------------------
Stuart B. Gleichenhaus,
Senior Vice President and Director
-19-
<PAGE> 20
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 June 5, 1995
(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.
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
<PAGE> 21
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> 22
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount of
Securities
to be
Underwriter Purchased
----------- ---------
<S> <C>
$
------------
Total . . . . . . . . . . . . . . . . . . $
============
</TABLE>
-3-
<PAGE> 23
SCHEDULE II
Title of Designated Securities:
[____]%
[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 March 12, 1987, between the Company and Texas
Commerce Bank National Association, as Trustee
Maturity:
Interest Rate:
[_____]%
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[Provisions for redemption]
Sinking Fund Provisions:
-4-
<PAGE> 24
[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]:
-5-
<PAGE> 25
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 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
-1-
<PAGE> 26
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 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
-2-
<PAGE> 27
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 1(b)
PRICING AGREEMENT
NationsBanc Capital Markets, Inc.
901 Main Street
66th Floor
Dallas, Texas 75202
June 5, 1995
Dear Sirs:
Centex Corporation (the "Company") proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated June 5, 1995
(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.
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
<PAGE> 2
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:/s/ VICKI A. ROBERTS
--------------------------
Vicki A. Roberts,
Treasurer
Accepted as of the date hereof
at Dallas, Texas:
NATIONSBANC CAPITAL MARKETS, INC.
By:/S/ STUART B. GLEICHENHAUS
-------------------------------------
Stuart B. Gleichenhaus,
Senior Vice President and Director
-2-
<PAGE> 3
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount of
Securities
to be
Underwriter Purchased
----------- ---------
<S> <C>
NationsBanc Capital Markets, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000,000
------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000,000
============
</TABLE>
<PAGE> 4
SCHEDULE II
Title of Designated Securities:
7-3/8% Subordinated Debentures due June 1, 2005
Aggregate principal amount:
$100,000,000
Price to Public:
99.511% of the principal amount of the Designated Securities,
plus accrued interest from June 9, 1995
Purchase Price by Underwriters:
98.911% of the principal amount of the Designated Securities,
plus accrued interest from June 9, 1995
Specified funds for payment of purchase price:
Wire transfer of immediately available funds
Indenture:
Indenture, dated as of March 12, 1987, between the Company and Texas
Commerce Bank National Association, as Trustee
Maturity:
June 1, 2005
Interest Rate:
7-3/8%
Interest Payment Dates:
June 1 and December 1, commencing December 1, 1995
Redemption Provisions:
The Designated Securities are not subject to redemption
prior to maturity.
<PAGE> 5
Sinking Fund Provisions:
None
Time of Delivery:
10:00 a.m., eastern time, on June 9, 1995
Closing Location:
Offices of Thompson & Knight, P.C., 1700 Pacific Avenue,
Dallas, Texas 75201
Name and address of Representative(s):
Designated Representative(s): NationsBanc Capital Markets, Inc.
Address for Notices, etc.: 901 Main Street
66th Floor
Dallas, Texas 75202
Book-Entry Provisions:
The Designated Securities will be evidenced by a book-entry on the
records of The Depository Trust Company, acting as custodial agent for
brokerage firms that maintain accounts for their respective customers,
and in such amounts as contained in instructions delivered by the
Representative to the Company two business days prior to the Closing.
The Representative may inspect and confirm such book-entry and custodial
arrangements on the business day prior to the Closing.
-2-
<PAGE> 1
EXHIBIT 4(b)
CENTEX CORPORATION
Issuer
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
INDENTURE SUPPLEMENT
Dated as of June 9, 1995
to
INDENTURE
Dated as of March 12, 1987
$100,000,000
7-3/8% SUBORDINATED DEBENTURES DUE JUNE 1, 2005
<PAGE> 2
INDENTURE SUPPLEMENT, dated as of June 9, 1995, 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 March 12, 1987 (the
"Indenture").
PRELIMINARY STATEMENT
Section 2.02 of the Indenture provides, among other things, that the
Company may, when authorized by its Board of Directors, and the Trustee may at
any time and from time to time, enter into an indenture supplemental to the
Indenture for the purpose of authorizing a Series of Subordinated Debt
Securities and to specify certain terms of such Series of Subordinated Debt
Securities. The Board of Directors of the Company has duly authorized the
creation of a Series of Subordinated Debt Securities with an aggregate
principal amount of $100,000,000 to be known as the Company's 7-3/8%
Subordinated Debentures due June 1, 2005 (the "Debentures"), and the Company
and the Trustee are executing and delivering this Indenture Supplement in order
to provide for the issuance of the Debentures. All terms used in this
Indenture Supplement which are defined in the Indenture, either directly or by
reference therein, have the meanings assigned to them therein, except to the
extent such terms are defined in this Indenture Supplement or the context
clearly requires otherwise.
SECTION 1. Designation.
The Debentures shall be designated as the Company's "7-3/8%
Subordinated Debentures due June 1, 2005".
SECTION 2. Date of Debentures.
The Debentures which are authenticated and delivered by the Trustee to
or upon the order of the Company on the Closing Date for the Debentures shall
be dated June 9, 1995. All other Debentures which are authenticated after the
Closing Date for the Debentures for any other purpose under the Indenture shall
be dated the date of their authentication. For purposes of this Section 2,
"Closing Date for the Debentures" shall mean the date on which the Debentures
are first executed, authenticated and delivered.
SECTION 3. Aggregate Principal Amount.
The aggregate principal amount of Debentures that may be authenticated
and delivered under the Indenture and this Indenture Supplement is limited to
$100,000,000, except for Debentures authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Debentures pursuant to Section 2.06, 2.07, 2.08 or 11.04 of the Indenture.
SECTION 4. Interest Rate.
The Debentures shall bear interest at the rate of 7-3/8% per annum.
-1-
<PAGE> 3
SECTION 5. Interest Payment Dates.
The interest payment dates for the Debentures are June 1 and December
1 in each year, commencing December 1, 1995.
SECTION 6. Record Date.
The record date with respect to an interest payment date shall be the
close of business on the 15th 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 Debentures.
The Debentures are issuable initially in denominations of $100,000 and
in integral multiples of $5,000 above such amount. Thereafter, upon
reregistration, exchange or transfer, the Debentures are issuable in
denominations of $1,000 and integral multiples thereof.
SECTION 8. Currency of Issuance and Payments.
The Debentures shall be issued in the currency of United States of
America and shall be paid in such coin or currency.
SECTION 9. No Redemption.
Prior to maturity, the Debentures will not be redeemable at the option
of the Company or otherwise.
SECTION 10. No Sinking Fund.
No Sinking Fund will be established with respect to the Debentures and
the Debentures will not be subject to any sinking fund payments by the Company.
SECTION 11. Form of Debentures.
The Debentures shall be in the form attached hereto as Exhibit A.
SECTION 12. Maturity.
The Debentures will mature and be payable in accordance with their
terms on June 1, 2005.
SECTION 13. Interest Accrual Matters.
Interest on the Debentures shall accrue from June 9, 1995, and shall
be computed based on a 360-day year comprised of twelve 30-day months.
-2-
<PAGE> 4
SECTION 14. Book-Entry Matters.
Pursuant to Section 2.02 of the Indenture, the following provisions
shall apply to the Debentures, notwithstanding anything to the contrary in the
Indenture:
(a) The Debentures will be issued in fully registered
form only. However, except as provided in paragraphs (d), (e) and (f)
of this Section 14, the registered owner of all of the Debentures
initially shall be The Depository Trust Company ("DTC") or its
nominee, and such Debentures initially shall be registered in the name
of DTC or its nominee. Payment of the principal of or interest on
Debentures 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 June 9, 1995, 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 Debentures (the "Book-Entry System").
(b) The Debentures shall be initially issued in the form
of a separate, single, authenticated, fully registered Debenture (the
"Global Debenture") 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
and be denominated in an amount equal to 100% of the aggregate
principal amount of the Debentures issued under this Indenture
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, (iv) shall be
registered in the Subordinated 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 Debenture 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 Debentures in
definitive certificated form, the Global Debenture representing the
Debentures 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.
-3-
<PAGE> 5
(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 Debentures registered in its name for the purposes of payment of
the principal of or interest on the Debentures, giving any notice
permitted or required to be given to holders of the Debentures under
the Indenture or this Indenture Supplement, registering the transfer
of the Debentures, obtaining any consent or other action to be taken
by holders of the Debentures 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 Debentures under or
through the Depository or any Participant, or any other person which
is not shown on the Subordinated Debt Security Register as being a
holder of the Debentures, with respect to (i) the accuracy of any
records maintained by 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 Debentures, or (iii) the
payment by any Participant to any owner of a beneficial ownership
interest in the Debentures in respect of the principal of or interest
on the Debentures. The Trustee shall pay all principal of and
interest on the Debentures only to or upon the order of the registered
holder or holders of the Debentures, as shown in the Subordinated 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 Debentures to the extent of
the sum or sums so paid. No person other than a holder of the
Debentures, as shown in the Subordinated Debt Security Register, shall
receive an authenticated Debenture evidencing the obligation of the
Company to make payment of the principal of and interest on the
Debentures pursuant to the Indenture and this Indenture 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 Indenture
Supplement, the word "Cede & Co.", as used in this Indenture
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
Debentures, 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 Debentures,
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 Debentures. 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 Debentures, will authenticate and deliver
Debentures 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 Debenture
and in exchange for such Global Debenture.
-4-
<PAGE> 6
(e) If at any time the Depository notifies the Company
that it is unwilling or unable to continue as Depository for the
Debentures or if at any time the Depository 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 Debentures. If a successor Depository for the
Debentures 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
Debentures, will authenticate and deliver Debentures 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 Debenture and in exchange for such Global
Debenture.
(f) The Company may at any time and in its sole
discretion determine that the Debentures shall no longer be
represented by a Global Debenture. In such event the Company will
execute, and the Trustee, upon receipt of an Issuer Order for the
authentication and delivery of definitive certificated Debentures,
will authenticate and deliver Debentures 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 Debenture and in exchange for such Global Debenture.
(g) Upon the exchange of a Global Debenture for
Debentures in definitive certificated form, in authorized
denominations, such Global Debenture 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 Debentures evidencing the
Debentures to any Participant having Debentures credited to its
account at the Depository, or (ii) arrange for another Depository to
maintain custody of the Global Debenture or Debentures evidencing the
Debentures.
(i) In connection with any notice or other communication
to be provided to holders of the Debentures pursuant to the Indenture
and this Indenture Supplement by the Company or the Trustee with
respect to any consent or other action to be taken by holders of the
Debentures, 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 extent possible. Such notice to
the Depository shall be given only so long as a Depository or its
nominee is the sole holder of the Debentures.
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<PAGE> 7
SECTION 15. Counterparts.
This Indenture 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 Indenture Supplement and each Debenture 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.
SECTION 17. Acceptance of Trusts.
Texas Commerce Bank National Association hereby accepts the trusts in
this Indenture 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 Indenture Supplement, the Indenture is in all
respects ratified and confirmed and the Indenture as so supplemented by this
Indenture Supplement shall be read, taken and construed as one and the same
instrument.
[Remainder of page intentionally left blank.]
-6-
<PAGE> 8
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Indenture 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]
Attest: By: /S/ VICKI A. ROBERTS
----------------------------------------
Vicki A. Roberts, Treasurer
/S/ DAVID A. GREENBLATT
- --------------------------
David A. Greenblatt,
Assistant Secretary
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
[SEAL]
Attest: By:/S/ JOANNE K. GULLIVER
------------------------------------------
JoAnne K. Gulliver, Vice President
and Trust Officer
/S/ WAYNE MENTZ
- --------------------------
Name: Wayne Mentz
Title: Asst. Vice President and
Trust Officer
-7-
<PAGE> 9
STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Vicki A. Roberts 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 9th day of June, 1995.
/S/ TONI M. GRIVAS
------------------------------------
Notary Public in and for the
State of Texas
My commission expires: /S/ TONI M. GRIVAS
------------------------------------
Printed Name of Notary Public
12/31/96
- ---------------------------
STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Wayne Mentz and JoAnne K. Gulliver,
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 national banking association
for the purposes and consideration therein expressed, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 9th day of June, 1995.
/S/ TONI M. GRIVAS
----------------------------------
Notary Public in and for the
State of Texas
My commission expires: /S/ TONI M. GRIVAS
----------------------------------
Printed Name of Notary Public
12/31/96
- ----------------------------------
-8-
<PAGE> 10
No. 01 $100,000,000
CUSIP No. 152312AD6
EXHIBIT A
UNLESS THIS SUBORDINATED DEBENTURE 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 REPRESENCUSIPENo. 152312AD6ANY 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.
CENTEX CORPORATION
7-3/8% SUBORDINATED DEBENTURES DUE JUNE 1, 2005
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 CEDE & CO. or registered assigns, the
principal sum of ONE HUNDRED MILLION AND NO/100 DOLLARS on June 1, 2005, in
such coin or currency of the United States of America 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 Subordinated Debenture, with respect to interest accrued from June 9, 1995
to the date of the current interest payment, to the registered holder hereof as
of the close of business on the fifteenth 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 Borough of Manhattan, The City of New York, such interest
payments to be made, except as otherwise provided in the Indenture hereinafter
referred to, on June 1 and December 1 in each year, commencing December 1,
1995, 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 Subordinated Debt
Security Register. Interest on the Subordinated Debentures shall be computed
based on a 360-day year comprised of twelve 30-day months.
This Subordinated Debenture 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 Subordinated Debenture 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 Subordinated Debenture 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.
<PAGE> 11
IN WITNESS WHEREOF, CENTEX CORPORATION has caused this instrument to
be signed in its corporate name by the signature of its President or a Vice
President, or a facsimile thereof, 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: June 9, 1995 CENTEX CORPORATION
<TABLE>
<S> <C>
By
---------------------------
[SEAL] Michael S. Albright,
Vice President - Finance and
Controller
ATTEST:
- ------------------------
David A. Greenblatt,
Assistant Secretary
</TABLE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Debentures described in the
within-mentioned Indenture.
<TABLE>
<S> <C>
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
By
---------------------------
Authorized Signature
</TABLE>
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<PAGE> 12
CENTEX CORPORATION
7-3/8% SUBORDINATED DEBENTURES DUE JUNE 1, 2005
This Subordinated Debenture is one of a duly authorized issue of
Subordinated Debt Securities of the Company issued and to be issued in one or
more Series, and this Subordinated Debenture is one of the Series of
Subordinated Debt Securities designated as its 7-3/8% Subordinated Debentures
due June 1, 2005 (herein referred to as the "Subordinated Debentures"), limited
to the aggregate principal amount of One Hundred Million and No/100 Dollars
($100,000,000), all issued or to be issued under and pursuant to an Indenture
dated as of March 12, 1987 (herein referred to as the "Indenture"), duly
executed and delivered by the Company to Texas Commerce Bank National
Association, as trustee (referred to herein as the "Trustee"), to which
Indenture and all indentures supplemental thereto (including the Indenture
Supplement dated as of June 9, 1995 (the "Indenture Supplement"), which
authorizes the Subordinated Debentures) 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
Subordinated Debt Securities of each particular Series and the terms upon which
the Subordinated Debt Securities of each Series are, and are to be,
authenticated and delivered. All terms used in this Subordinated Debenture
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture. In the event of any conflict between the terms of this
Subordinated Debenture and the Indenture Supplement, the latter shall control.
As provided in the Indenture, the Subordinated Debt Securities are issuable in
Series which may vary as in the Indenture provided or permitted.
The indebtedness evidenced by the Subordinated Debentures is, to the
extent and in the manner provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior Indebtedness of the
Company. As provided in the Indenture, each holder of this Subordinated
Debenture, by his acceptance hereof, agrees to and shall be bound by all the
provisions of the Indenture relating to such subordination and authorizes the
Trustee to take such action in his behalf as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and appoints the
Trustee his attorney-in-fact for any and all such purposes.
In case an Event of Default shall have occurred and be continuing with
respect to the Subordinated Debentures, 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
Subordinated Debentures then outstanding. An Event of Default with respect to
the Subordinated Debt Securities 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 Subordinated Debentures.
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 Subordinated Debentures at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions 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 Subordinated
Debentures; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Subordinated Debentures, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, without the consent of the holder of each Subordinated
Debenture so affected, or (ii) reduce the aforesaid percentage of Subordinated
Debentures, the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all Subordinated
Debentures then outstanding. It is also provided in the Indenture that the
holders of a majority in aggregate principal amount of the Subordinated
Debentures at the time outstanding may on
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<PAGE> 13
behalf of the holders of all the Subordinated Debentures waive any past default
under the Indenture and its consequences, except a default in the payment of
the principal of or interest on any of the Subordinated Debentures. Any such
consent or waiver by the holder of this Subordinated Debenture (unless revoked
as provided in the Indenture) shall be conclusive and binding upon such holder
and upon all future holders and owners of this Subordinated Debenture and of
any Subordinated Debenture issued in exchange or substitution herefor, whether
or not any notation of such consent or waiver is made upon this Subordinated
Debenture.
Subject to the rights of holders of Senior Indebtedness of the Company
set forth in the Indenture, no reference herein to the Indenture and no
provision of this Subordinated Debenture or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest on this Subordinated Debenture at the place,
at the respective times, at the rate and in the currency herein prescribed.
The Subordinated Debentures are issuable in registered form in
denominations of $100,000 and any integral multiple of $5,000 above such
amount. Thereafter, upon reregistration, exchange or transfer, the Debentures
are issuable in denominations of $1,000 and integral multiples thereof.
The Subordinated Debentures are not subject to redemption prior to
maturity. No Sinking Fund has been created with respect to the Subordinated
Debentures and they are not subject to any Sinking Fund payments.
Upon due presentment for registration of transfer of this Subordinated
Debenture 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 Borough of Manhattan, The City of New York,
a new Subordinated Debenture or Subordinated Debentures 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 Subordinated Debentures may in like
manner be exchanged for one or more new Subordinated Debentures of other
authorized denominations but of the same aggregate principal amount.
The Company, the Trustee, any paying agent and any Subordinate Debt
Security Registrar (as defined in the Indenture) for the Subordinated
Debentures may deem and treat the registered holder hereof as the absolute
owner of this Subordinated Debenture (whether or not this Subordinated
Debenture shall be overdue and notwithstanding any notation of ownership or
other writing hereon made by anyone other than the Company or any such
Subordinated 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 Subordinated 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
interest on this Subordinated Debenture, 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.
_____________________________
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