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EXHIBIT 4.24
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FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
OF
CENTEX TRUST [I] [II]
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Dated as of ________ ___, _____
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
SECTION 1.01 Definitions............................................................................2
ARTICLE II TRUST INDENTURE ACT
SECTION 2.01 Trust Indenture Act; Application.......................................................8
SECTION 2.02 Lists of Holders of Preferred Securities...............................................9
SECTION 2.03 Reports by the Property Trustee........................................................9
SECTION 2.04 Periodic Reports to the Property Trustee...............................................9
SECTION 2.05 Evidence of Compliance with Conditions Precedent......................................10
SECTION 2.06 Events of Default; Waiver.............................................................10
SECTION 2.07 Disclosure of Information.............................................................11
SECTION 2.08 Provision of Information to Centex....................................................12
ARTICLE III ORGANIZATION
SECTION 3.01 Name..................................................................................12
SECTION 3.02 Office................................................................................12
SECTION 3.03 Issuance of the Securities............................................................12
SECTION 3.04 Purchase of Debentures................................................................13
SECTION 3.05 Purpose...............................................................................13
SECTION 3.06 Authority.............................................................................14
SECTION 3.07 Title to Property of the Trust........................................................14
SECTION 3.08 Powers and Duties of the Regular Trustees.............................................14
SECTION 3.09 Prohibition of Actions by the Trust and the Trustees..................................16
SECTION 3.10 Powers and Duties of the Property Trustee.............................................18
SECTION 3.11 Delaware Trustee......................................................................20
SECTION 3.12 Certain Rights and Duties of the Property Trustee.....................................21
SECTION 3.13 Registration Statement and Related Matters............................................24
SECTION 3.14 Filing of Amendments to Certificate of Trust..........................................25
SECTION 3.15 Execution of Documents by the Regular Trustees........................................25
SECTION 3.16 Trustees Not Responsible for Recitals or Issuance of Securities.......................25
SECTION 3.17 Duration of the Trust.................................................................25
SECTION 3.18 Mergers...............................................................................26
SECTION 3.19 Property Trustee May File Proofs of Claim.............................................28
ARTICLE IV SPONSOR
SECTION 4.01 Purchase of Common Securities by the Sponsor..........................................28
SECTION 4.02 Expenses..............................................................................29
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ARTICLE V TRUSTEES
SECTION 5.01 Number of Trustees; Qualifications....................................................29
SECTION 5.02 Appointment, Removal and Resignation of the Trustees..................................31
SECTION 5.03 Vacancies Among the Trustees..........................................................33
SECTION 5.04 Effect of Vacancies...................................................................33
SECTION 5.05 Meetings..............................................................................33
SECTION 5.06 Delegation of Power...................................................................33
SECTION 5.07 Merger, Conversion, Consolidation or Succession to Business...........................34
ARTICLE VI DISTRIBUTIONS
SECTION 6.01 Distributions.........................................................................34
ARTICLE VII ISSUANCE OF THE SECURITIES
SECTION 7.01 General Provisions Regarding the Securities...........................................34
SECTION 7.02 [Conversion Agent.....................................................................36
ARTICLE VIII DISSOLUTION OF THE TRUST
SECTION 8.01 Dissolution of the Trust..............................................................36
ARTICLE IX TRANSFER OF INTERESTS
SECTION 9.01 Transfer of Securities................................................................37
SECTION 9.02 Transfer of Certificates..............................................................37
SECTION 9.03 Deemed Security Holders...............................................................37
SECTION 9.04 Book Entry Interests..................................................................38
SECTION 9.05 Notices to Holders of Certificates....................................................38
SECTION 9.06 Appointment of Successor Clearing Agency..............................................39
SECTION 9.07 Definitive Preferred Securities Certificates..........................................39
SECTION 9.08 Mutilated, Destroyed, Lost or Stolen Certificates.....................................39
ARTICLE X LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.01 Exculpation...........................................................................40
SECTION 10.02 Indemnification.......................................................................40
SECTION 10.03 Outside Business......................................................................40
ARTICLE XI ACCOUNTING
SECTION 11.01 Fiscal Year...........................................................................41
SECTION 11.02 Certain Accounting Matters............................................................41
SECTION 11.03 Banking...............................................................................42
SECTION 11.04 Withholding...........................................................................42
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ARTICLE XII AMENDMENTS AND MEETINGS
SECTION 12.01 Amendments............................................................................42
SECTION 12.02 Meetings of the Holders of Securities; Action by Written Consent......................43
ARTICLE XIII REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 13.01 Representations and Warranties of the Property Trustee................................45
SECTION 13.02 Representations and Warranties of the Delaware Trustee................................46
ARTICLE XIV MISCELLANEOUS
SECTION 14.01 Notices...............................................................................46
SECTION 14.02 Undertaking for Costs.................................................................48
SECTION 14.03 Governing Law.........................................................................48
SECTION 14.04 Headings..............................................................................48
SECTION 14.05 Partial Enforceability................................................................48
SECTION 14.06 Counterparts..........................................................................48
SECTION 14.07 Intention of the Parties..............................................................48
SECTION 14.08 Successors and Assigns................................................................49
SECTION 14.09 No Recourse...........................................................................49
SECTION 14.10 Agent for Service of Process..........................................................49
SECTION 14.11 Payment Currency......................................................................49
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EXHIBIT A: CERTIFICATE OF TRUST
EXHIBIT B: TERMS OF THE PREFERRED SECURITIES
EXHIBIT C: TERMS OF THE COMMON SECURITIES
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AMENDED AND RESTATED
DECLARATION OF TRUST
OF
CENTEX TRUST [I] [II]
AMENDED AND RESTATED DECLARATION OF TRUST (this "Declaration") dated
and effective as of ________ ___, ____ by ______________, an individual,
___________, an individual, and ___________, an individual, as Regular Trustees
(the "Regular Trustees"), The Chase Manhattan Bank, as Property Trustee (the
"Property Trustee"), and Chase Manhattan Bank USA, National Association, having
its principal place of business in the State of Delaware, as Delaware Trustee
(the "Delaware Trustee") (together with all other Persons from time to time duly
appointed and serving as trustees in accordance with the provisions of this
Declaration, the "Trustees"), by Centex Corporation, a Nevada corporation, as
trust sponsor ("Centex" or the "Sponsor"), and by the holders, from time to
time, of undivided beneficial interests in the assets of the Trust (as
hereinafter defined) to be issued pursuant to this Declaration.
WHEREAS, the Sponsor and certain of the Trustees entered into a
Declaration of Trust dated as of November 9, 2000, (the "Original Declaration")
in order to establish Centex Trust [I] [II], a statutory business trust (the
"Trust"), under the Business Trust Act (as hereinafter defined);
WHEREAS, the Certificate of Trust (the "Certificate of Trust") of the
Trust was filed with the office of the Secretary of State of the State of
Delaware on November 9, 2000; and
WHEREAS, the Trustees and the Sponsor desire to continue the Trust
pursuant to the Business Trust Act for the purpose of, as described more fully
in Sections 3.03, 3.04 and 3.05 hereof, (i) issuing and selling Preferred
Securities (as hereinafter defined) representing preferred undivided beneficial
interests in the assets of the Trust for cash and investing the proceeds thereof
in Debentures (as hereinafter defined) of Centex issued under the Indenture (as
hereinafter defined) to be held as assets of the Trust and (ii) issuing and
selling Common Securities (as hereinafter defined) representing common undivided
beneficial interests in the assets of the Trust to Centex in exchange for cash
and investing the proceeds thereof in additional Debentures issued under the
Indenture to be held as assets of the Trust;
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act, that the
Original Declaration be amended and restated in its entirety as provided herein
and that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that all Debentures referred to in clauses (i) and
(ii) of the previous paragraph purchased by the Trust will be held for the
benefit of the Holders (as hereinafter defined) from time to time, of the
Certificates (as hereinafter defined) representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject to the provisions
of this Declaration.
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.01.
(b) A term defined anywhere in this Declaration has the same meaning
throughout.
(c) All references to "the Declaration" or "this Declaration" are to
this Amended and Restated Declaration of Trust (including Exhibits A, B and C
hereto (the "Exhibits")) as modified, supplemented or amended from time to time.
(d) All references in this Declaration to Articles, Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified.
(e) A term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires.
(f) A reference to the singular includes the plural and vice versa.
"Additional Amounts" has the meaning set forth in the Indenture.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
of a Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Book Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or a nominee thereof,
ownership and transfers of which shall be maintained and made through book
entries by such Clearing Agency as described in Section 9.04.
"Business Day" means any day that is not a Legal Holiday.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code Section 3801 et seq., as it may be amended from time to time, or
any successor legislation.
"Centex" or "Sponsor" means Centex Corporation, a Nevada corporation,
or any successor entity resulting from any merger, consolidation, amalgamation
or other business combination.
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"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Certificate of Trust" has the meaning set forth in the recitals above.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depository
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the Closing Date as specified in the Underwriting
Agreement, which date is also the date of execution and delivery of this
Declaration.
"Code" means the United States Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation. A reference to a
specific section (Sec.) of the Code refers not only to such specific section but
also to any corresponding provision of any United States Federal tax statute
enacted after the date of this Declaration, as such specific section or
corresponding provision is in effect on the date of application of the
provisions of this Declaration containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section 7.01(b).
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Annex I to Exhibit C.
"Common Stock" means the common stock, par value $.25 per share, of
Centex or any other class of stock, other securities, cash or other assets into
which the Debentures are then convertible.
["Conversion Agent" has the meaning specified in Section 7.02.]
"Covered Person" means (i) any officer, director, shareholder, partner,
member, representative, employee or agent of the Trust or of any of its
Affiliates, (ii) any officer, director, shareholder, employee, representative or
agent of Centex or of any of its Affiliates and (iii) the Holders from time to
time of the Securities.
"Creditor" has the meaning specified in Section 4.02(c).
"Debenture Trustee" means The Chase Manhattan Bank, a New York banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder and thereafter means such successor trustee.
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"Debentures" means the series of [convertible] unsecured junior
subordinated debentures issued by Centex under the Indenture to the Property
Trustee and entitled the "____% [Convertible] Junior Subordinated Debentures due
_______________."
"Definitive Preferred Security Certificates" has the meaning set forth
in Section 9.04.
"Delaware Trustee" has the meaning set forth in Section 5.01(a)(ii).
"Depositary Agreement" means the agreement among the Trust, the
Property Trustee and DTC dated as of the Closing Date, as the same may be
amended or supplemented from time to time.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.01.
"Dollar" has the meaning set forth in the Indenture.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" in respect of the Securities means that an Indenture
Event of Default has occurred and is continuing with respect to the Debentures.
"Exchange" has the meaning specified in Section 3.13.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiscal Year" has the meaning specified in Section 11.01.
"Global Certificate" has the meaning set forth in Section 9.04.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Holder Direct Action" has the meaning specified in Section 3.10(e).
"Indemnified Person" means any Trustee, any Affiliate of any Trustee,
any Conversion Agent, any Paying Agent, any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Trustee,
Conversion Agent or Paying Agent, or any employee or agent of the Trust or of
any of its Affiliates.
"Indenture" means the Indenture dated as of _________, 2000 between
Centex and the Debenture Trustee, as supplemented by the _______ Supplemental
Indenture thereto dated as of ____________, ____, pursuant to which the
Debentures are to be issued to the Property Trustee.
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"Indenture Event of Default" means that an event or condition defined
as an "Event of Default" with respect to the Debentures under Section 6.01(a) of
the Indenture has occurred and is continuing.
"Investment Company" means an "investment company" as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning specified in Section 3.08(g).
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in any of The City of New York, New York or Dallas, Texas are
authorized or obligated by law, regulation or executive order to remain closed.
"Liquidation Distribution" has the meaning set forth in Exhibits B and
C hereto establishing the terms of the Securities.
"List of Holders" has the meaning specified in Section 2.02(a).
"Majority of Outstanding" Securities means, except as provided in the
penultimate paragraph of Section [6](b) of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities,
voting separately as a class, who are the record owners of a relevant class of
Securities representing more than 50% of the outstanding Securities of such
class.
"1933 Act Registration Statement" has the meaning specified in Section
3.13.
"1934 Act Registration Statement" has the meaning specified in Section
3.13.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, any Vice Chairman of the Board, any Vice President,
the chief financial officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Assistant Secretary of the Sponsor, and
delivered to the appropriate Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 2.04 shall be the Chairman of the Board,
President, Vice Chairman of the Board or any Vice President of the Sponsor. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Declaration shall include:
(i) a statement that the individual making such certificate
has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate are based;
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(iii) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such
individual, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel that (i) may be
counsel for the Trust, the Property Trustee or the Sponsor, (ii) unless
otherwise provided, may be an employee of the Sponsor but shall not be an
employee of the Trust or the Property Trustee, and (iii) shall be reasonably
acceptable to the Property Trustee. Any Opinion of Counsel pertaining to U.S.
Federal income tax matters may rely, inter alia, on published rulings or other
official pronouncements of the U.S. Internal Revenue Service.
["Option Closing Date" means the [Option Closing Date] as specified in
the Underwriting Agreement.]
"Original Declaration" has the meaning set forth in the recitals above.
"Paying Agent" has the meaning specified in Section 3.10(i).
"Payment Amount" has the meaning specified in Section 6.01.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"Preferred Securities" has the meaning specified in Section 7.01(b).
"Preferred Securities Guarantee" means the Guarantee Agreement dated as
of __________, ____ of Centex and The Chase Manhattan Bank, as initial guarantee
trustee thereunder, in respect of the Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Preferred Security Certificate" means a definitive certificate in
fully registered form representing a Preferred Security substantially in the
form of Annex I to Exhibit B.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.01(c) and having the duties set forth for
the Property Trustee herein.
"Property Account" has the meaning specified in Section 3.10(c)(i).
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"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both such Regular Trustees.
"Regular Trustee" means any Trustee other than the Property Trustee and
the Delaware Trustee.
"Resignation Request" has the meaning specified in Section 5.02(c).
"Responsible Officer" means, when used with respect to the Property
Trustee, any officer within the corporate trust department of the Property
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Property Trustee who customarily performs functions similar to those performed
by the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of such Person's knowledge of and
familiarity with the particular subject and, in either case, who shall have
direct responsibility for the administration of this Declaration.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act or any
successor rule thereunder.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Special Event" has the meaning set forth in the terms of the
Securities as set forth in Section 4 of Exhibits B and C hereto.
"Sponsor" or "Centex" means Centex Corporation, a Nevada corporation,
or any successor entity resulting from any merger, consolidation, amalgamation
or other business combination.
"Successor Delaware Trustee" has the meaning specified in Section
5.02(a)(ii).
"Successor Entity" has the meaning specified in Section 3.18(b)(i).
"Successor Property Trustee" has the meaning specified in Section
5.02(a)(i).
"Successor Securities" has the meaning specified in Section
3.18(b)(i)(B).
"Super Majority" has the meaning specified in Section 2.06(a)(ii).
"Supplemental Indenture" means the _____ Supplemental Indenture dated
as of ________, ____ between Centex and the Debenture Trustee, pursuant to which
the Debentures are to be issued to the Property Trustee.
"10% of Outstanding" Securities means, except as provided in the
penultimate paragraph of Section [6](b) of Exhibit B hereto, Holder(s) of
outstanding Securities voting
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together as a single class or, as the context may require, Holder(s) of
outstanding Preferred Securities or Common Securities, voting separately as a
class, who are the record owners of a relevant class of Securities representing
10% or more of the outstanding Securities of such class.
"Treasury Regulations" means the income tax regulations, including
temporary regulations, promulgated under the Code by the United States Treasury,
as such regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
"Trust" has the meaning set forth in the recitals above.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement dated as of
__________, ____ among the Trust, the Sponsor and _______ and _________, as
[representatives of the several] underwriters [named therein].
"United States Person" means a United States person for United States
Federal income tax purposes.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 Trust Indenture Act; Application
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(c) The Property Trustee, to the extent permitted by applicable law
and/or the rules and regulations of the Commission, shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture Act.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
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SECTION 2.02 Lists of Holders of Preferred Securities
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee (unless the Property Trustee is the registrar
for the Securities) (i) on each regular record date for payment of
Distributions, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of
such record date, and (ii) at any other time, within 30 days of receipt by the
Trust of a written request for a List of Holders as of a date no more than 15
days before such List of Holders is given to the Property Trustee; provided that
in each case neither the Sponsor nor the Regular Trustees on behalf of the Trust
shall be obligated to provide such List of Holders at any time that the List of
Holders does not differ from the most recent List of Holders given to the
Property Trustee by the Sponsor and the Regular Trustees on behalf of the Trust.
The Property Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in the Lists of Holders given to it or
which it receives in the capacity as Paying Agent (if acting in such capacity);
provided that the Property Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.03 Reports by the Property Trustee
Within 60 days after May 15 of each year, commencing May 15, ____, the
Property Trustee shall deliver to the Holders of the Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form, in
the manner and at the times provided by Section 313 of the Trust Indenture Act.
The Property Trustee shall also comply with the other requirements of Section
313 of the Trust Indenture Act. A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee with the Sponsor,
with each stock exchange or quotation system upon which any Preferred Securities
are listed or traded (if so listed or traded) and also with the Commission. The
Regular Trustees agree to notify the Property Trustee and the Sponsor when any
Preferred Securities become listed on any stock exchange or quotation system and
of any delisting thereof.
SECTION 2.04 Periodic Reports to the Property Trustee
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee, the Commission and the Holders of the
Securities, as applicable, such documents, reports and information (if any) as
required by Section 314(a)(1)-(3) of the Trust Indenture Act and the compliance
certificates required by Section 314(a)(4) and (c) of the Trust Indenture Act,
any such certificates to be provided in the form, in the manner and at the times
required by Section 314(a)(4) and (c) of the Trust Indenture Act (provided that
any certificate to be provided pursuant to Section 314(a)(4) of the Trust
Indenture Act shall be provided within 120 days of the end of each Fiscal Year).
Delivery of such reports, information and documents to the Property Trustee is
for informational purposes only and the Property Trustee's receipt of such shall
not constitute constructive notice of any information contained therein,
including the Sponsor's compliance with any of its covenants hereunder (as to
which the Property Trustee is entitled to
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rely exclusively on Officers' Certificates or on certificates provided pursuant
to this Section 2.04).
SECTION 2.05 Evidence of Compliance with Conditions Precedent
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration which relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c) may be given in the form of an Officers' Certificate.
SECTION 2.06 Events of Default; Waiver
(a) The Holders of a Majority of Outstanding Preferred Securities may,
by vote, on behalf of the Holders of all of the Preferred Securities, waive any
past Event of Default in respect of the Preferred Securities and its
consequences; provided that, if the underlying Event of Default under the
Indenture:
(i) is not waivable under the Indenture, the Event of Default
under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of the holders of greater
than a majority in aggregate principal amount of the Debentures (a
"Super Majority") to be waived under the Indenture, the Event of
Default under this Declaration may only be waived by the vote of the
Holders of at least the proportion in aggregate liquidation amount of
the Preferred Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.06(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority of Outstanding Common Securities may, by
vote, on behalf of the Holders of all of the Common Securities, waive any past
Event of Default with respect to the Common Securities and its consequences;
provided that, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under
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this Declaration as provided above in Section 2.06(a) or below in this
Section 2.06(b), the Event of Default under this Declaration shall also
not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under this Declaration as provided
above in Section 2.06(a) or below in this Section 2.06(b), the Event of
Default under this Declaration may only be waived by the vote of the
Holders of at least the proportion in aggregate liquidation amount of
the Common Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding;
provided, further, that the Holders of Common Securities will be deemed
to have waived any such Event of Default and all Events of Defaults with respect
to the Common Securities and their consequences until all Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting solely on
behalf of the Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Securities. The foregoing provisions of this
Section 2.06(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. In the event that any Event
of Default with respect to the Preferred Securities is waived by the Holders of
Preferred Securities as provided in this Declaration, the Holders of Common
Securities agree that such waiver shall also constitute the waiver of such Event
of Default with respect to the Common Securities for all purposes under this
Declaration without any further act, vote or consent of the Holders of the
Common Securities. Subject to the foregoing provisions of this Section 2.06(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the Property
Trustee, at the direction of the Holders of Preferred Securities, constitutes a
waiver of the corresponding Event of Default under this Declaration. The
foregoing provisions of this Section 2.06(c) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.07 Disclosure of Information
The disclosure of information as to the names and addresses of the
Holders of the Securities in accordance with Section 312 of the Trust Indenture
Act, regardless of the source from which such information was derived, shall not
be deemed to be a violation of any existing law, or any law hereafter enacted
which does not specifically refer to Section 312 of the Trust Indenture Act, nor
shall the Property Trustee be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
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SECTION 2.08 Provision of Information to Centex
The Regular Trustees shall provide Centex with such documents, reports
and other information with respect to the Trust and the Holders as are necessary
to permit Centex to comply with its obligations under this Article II, Article
II of the Preferred Securities Guarantee and Sections 312 and 314 of the Trust
Indenture Act.
ARTICLE III
ORGANIZATION
SECTION 3.01 Name
The Trust continued by this Declaration is named "Centex Trust [I]
[II]" as such name may be modified from time to time by the Regular Trustees
following written notice to the Holders of the Securities. The Trust's
activities may be conducted under the name of the Trust or any other name deemed
advisable by the Regular Trustees.
SECTION 3.02 Office
The address of the principal office of the Trust is c/o Centex
Corporation, 2728 North Harwood, Dallas, Texas 75201. Upon ten days' written
notice to the Holders, the Regular Trustees may change the location of the
Trust's principal office.
SECTION 3.03 Issuance of the Securities
The Sponsor, on behalf of the Trust and pursuant to the Original
Declaration, executed and delivered the Underwriting Agreement. On the Closing
Date and contemporaneously with the execution and delivery of this Declaration,
one or more of the Regular Trustees, in accordance with Section 7.01 and on
behalf of the Trust, shall execute and deliver (i) one or more Global
Certificates, registered in the name of the nominee of the initial Clearing
Agency as specified in Section 9.04 for the benefit of the underwriters named in
the Underwriting Agreement, in an aggregate amount of ___________ Preferred
Securities having an aggregate liquidation amount of $__________, against
receipt of the aggregate purchase price of such Preferred Securities of
$___________, and (ii) to the Sponsor, one or more Common Securities
Certificates, registered in the name of the Sponsor, in an aggregate amount of
________ Common Securities having an aggregate liquidation amount of
$____________, against receipt of the aggregate purchase price of such Common
Securities of $___________. [In the event and to the extent the over-allotment
option granted by the Trust and the Sponsor pursuant to the Underwriting
Agreement is exercised by such underwriters, on the Option Closing Date, the
Regular Trustees, in accordance with Section 7.01 and on behalf of the Trust,
shall execute and deliver (i) one or more Global Certificates, registered in the
name of the nominee of the initial Clearing Agency as specified in Section 9.04
for the benefit of the underwriters named in the Underwriting Agreement, in an
aggregate amount of up to _________ Preferred Securities having an aggregate
liquidation amount of up to $_________, against receipt of the aggregate
purchase price of such Preferred Securities of up to $_________, and (ii) to the
Sponsor, one or more Common Securities Certificates, registered in the name of
the nominee of the Sponsor, in an aggregate amount of up to _________ Common
Securities having an
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aggregate liquidation amount of up to $_________, against receipt of the
aggregate purchase price of such Common Securities of up to $_________.]
SECTION 3.04 Purchase of Debentures
On the Closing Date and contemporaneously with the execution and
delivery of this Declaration, one or more of the Regular Trustees, on behalf of
the Trust, shall purchase from the Sponsor with the proceeds received by the
Trust from the sale of the Securities on such date pursuant to Section 3.03, at
a purchase price of 100% of the principal amount thereof, Debentures, registered
in the name of the Property Trustee and having an aggregate principal amount
equal to $___________, and, in satisfaction of the purchase price for such
Debentures, the Regular Trustees, on behalf of the Trust, shall deliver or cause
to be delivered to the Sponsor the sum of $___________. [In the event the
over-allotment option granted by the Trust and the Sponsor with respect to the
Preferred Securities pursuant to the Underwriting Agreement is exercised by the
underwriters named therein, on the Option Closing Date, the Regular Trustees, on
behalf of the Trust, shall purchase from the Sponsor with the proceeds received
by the Trust from the sale of the Securities on such date pursuant to Section
3.03, at a purchase price of 100% of the principal amount thereof, additional
Debentures, registered in the name of the Property Trustee and having an
aggregate principal amount of up to $________, and, in satisfaction of the
purchase price for such Debentures, the Regular Trustees, on behalf of the
Trust, shall deliver or cause to be delivered to the Sponsor an amount equal to
the aggregate principal amount of the Debentures being purchased.]
SECTION 3.05 Purpose
The exclusive purposes and functions of the Trust are: (a)(i) to issue
and sell Preferred Securities for cash and use the proceeds of such sales to
purchase from Centex Debentures issued under the Indenture having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities so issued and sold; (ii) to enter into such agreements and
arrangements as may be necessary in connection with the sale of Preferred
Securities to the initial purchasers thereof (including the Underwriting
Agreement) and to take all action, and exercise such discretion, as may be
necessary or desirable in connection therewith and to file such registration
statements or make such other filings under the Securities Act, the Exchange Act
or state securities or "Blue Sky" laws as may be necessary or desirable in
connection therewith and with the issuance of the Preferred Securities; and
(iii) to issue and sell Common Securities to Centex for cash and use the
proceeds of such sale to purchase from Centex Debentures issued under the
Indenture having an aggregate principal amount equal to the aggregate
liquidation amount of the Common Securities so issued and sold; and (b) except
as otherwise limited herein, to engage in only those other activities necessary
or incidental thereto, including such other activities specifically authorized
in this Declaration. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, mortgage or pledge any of its assets or at
any time while the Securities are outstanding, otherwise undertake (or permit to
be undertaken) any activity that would result in or cause the Trust not to be
classified for United States Federal income tax purposes as a grantor trust.
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SECTION 3.06 Authority
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust, and an action taken by the
Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.07 Title to Property of the Trust
Except as provided in Section 3.10 with respect to the Debentures and
the Property Account or unless otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have
undivided beneficial interests in the assets of the Trust.
SECTION 3.08 Powers and Duties of the Regular Trustees
Each Regular Trustee shall be a United States Person. The Regular
Trustees shall have the exclusive power, authority and duty to cause the Trust,
and shall cause the Trust, to engage in the following activities:
(a) to issue Preferred Securities and Common Securities, in each case
in accordance with this Declaration; provided, however, that the Trust may issue
no more than one series of Preferred Securities and no more than one series of
Common Securities, and, provided further, that there shall be no interests in
the Trust other than the Securities and the issuance of Securities shall be
limited to [(x)] a one-time, simultaneous issuance of both Preferred Securities
and Common Securities on the Closing Date [and (y) any subsequent issuance of
both Preferred Securities and Common Securities on the Option Closing Date
pursuant to an exercise of the over-allotment option granted to the underwriters
in the Underwriting Agreement];
(b) to execute, deliver and perform the Depositary Agreement on behalf
of the Trust;
(c) to acquire as trust assets Debentures with the proceeds of the sale
of the Preferred Securities and the Common Securities; provided, however, that
the Regular Trustees shall cause legal title to all of the Debentures to be
vested in, and the Debentures to be held of record in the name of, the Property
Trustee for the benefit of the Holders of the Preferred Securities and the
Common Securities;
(d) if and to the extent that the Sponsor on behalf of the Trust has
not already done so, to cause the Trust to enter into the Underwriting Agreement
and/or such other agreements and arrangements as may be necessary or desirable
in connection with the sale of the Preferred Securities to the initial
purchasers thereof and the consummation thereof, and to take
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all action, and exercise all discretion, as may be necessary or desirable in
connection with the consummation thereof;
(e) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Special Event;
(f) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including for the purposes
of Section 316(c) of the Trust Indenture Act and with respect to Distributions,
voting rights, redemptions, and exchanges, and to issue relevant notices to
Holders of the Preferred Securities and Common Securities as to such actions and
applicable record dates;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.10, the Property Trustee has the
exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate to the Property Trustee required by Section
314(a)(4) of the Trust Indenture Act, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses which are necessary or incidental to carrying out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities, the Regular Trustees hereby initially
appointing the Property Trustee for such purposes;
(m) to take all actions and perform such duties as may be required of
the Regular Trustee, pursuant to the terms of the Securities set forth in
Exhibits B and C hereto;
(n) to take all actions which may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Securities or
to enable the Trust to effect the purposes for which the Trust has been created;
(o) to take all actions, not inconsistent with this Declaration, the
Certificate of Trust or applicable law, which the Regular Trustees determine in
their discretion to be necessary or desirable in carrying out the purposes of
the Trust and the activities of the Trust as set out in this Section 3.08,
including, but not limited to:
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(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
Federal income tax purposes as a grantor trust; and
(iii) cooperating with the Sponsor to ensure that the
Debentures will be treated as indebtedness of the Sponsor for United
States Federal income tax purposes;
(p) to take all actions necessary to cause all applicable tax returns
and tax information reports and forms that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of
the Trust, and to comply with any applicable requirements imposed by any taxing
authority on holders of instruments treated as indebtedness for United States
Federal income tax purposes;
(q) subject to the requirements of Rule 3a-7 (if the Trust is excluded
from the definition of an Investment Company solely by reason of Rule 3a-7) and
Section 317(b) of the Trust Indenture Act, to appoint one or more Paying Agents
in addition to the Property Trustee; and
(r) to execute all documents or instruments, perform all duties and
powers and do all things for and on behalf of the Trust in all matters necessary
or incidental to the foregoing.
The Regular Trustees must exercise the powers set forth in this Section
3.08 in a manner which is consistent with the purposes and functions of the
Trust set out in Section 3.05, and the Regular Trustees shall not take any
action which is inconsistent with the purposes and functions of the Trust set
forth in Section 3.05.
Subject to this Section 3.08, the Regular Trustees shall have none of
the powers or any of the authority of the Property Trustee set forth in Section
3.10.
The Regular Trustees shall take all actions on behalf of the Trust that
are not specifically required by this Declaration to be taken by any other
Trustee.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.08 shall be reimbursed by the Sponsor.
SECTION 3.09 Prohibition of Actions by the Trust and the Trustees
The Trust shall not, and the Trustees (including the Property Trustee)
shall cause the Trust not to, engage in any activity other than in connection
with the purposes of the Trust or other than as required or authorized by this
Declaration. In particular, the Trust shall not and the Trustees (including the
Property Trustee) shall not cause the Trust to:
(a) invest any proceeds received by the Trust as a result of holding
the Debentures, but the Trust shall promptly distribute from the Property
Account all such proceeds to Holders of Securities pursuant to the terms of this
Declaration and of the Securities;
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(b) acquire any assets other than as expressly provided herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans, other than loans represented by the Debentures;
(e) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever, except as
otherwise expressly provided herein;
(f) issue any securities or other evidences of beneficial ownership of,
or beneficial interests in, the Trust other than the Securities;
(g) incur any indebtedness for borrowed money;
(h) (i) direct the time, method and place of conducting any proceeding
for any remedy available to the Debenture Trustee or exercising any trust or
power conferred upon the Debenture Trustee with respect to the Debentures, (ii)
waive any past default that is waivable under Section 6.06 of the Indenture, or
(iii) exercise any right to rescind or annul a declaration of acceleration of
the maturity of the principal of the Debentures, without, in each case,
obtaining the prior approval of the Holders of a Majority of Outstanding
Securities;
(i) revoke any action previously authorized or approved by a vote of
the Holders of Preferred Securities except by subsequent vote of such Holders;
(j) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required, unless in the
case of this clause (j) the Property Trustee shall have received an Opinion of
Counsel experienced in such matters to the effect that such amendment,
modification or termination will not cause more than a remote risk that for
United States Federal income tax purposes the Trust will not be classified as a
grantor trust;
(k) take or consent to any action that would result in the placement of
a lien, pledge, charge, mortgage or other encumbrance on any of the Trust
property;
(l) vary the investment of certificate holders of the Trust (within the
meaning of Treasury Regulation Section 301.7701-4(c)); or
(m) after the date hereof, enter into any contract or agreement (other
than any depositary agreement or any agreement with any securities exchange or
automated quotation system) that does not expressly provide that the Holders of
Preferred Securities, in their capacities as such, have limited liability (in
accordance with the provisions of the Business Trust Act) for the liabilities
and obligations of the Trust, which express provision shall be in substantially
the following form:
The Holders of the Preferred Securities, in their capacities as such,
shall not be personally liable for any liabilities or obligations of the Trust
arising out of this Declaration, and the parties hereto hereby agree that the
Holders of the Preferred Securities, in their capacities as
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such, shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 3.10 Powers and Duties of the Property Trustee
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Property Trustee
to the Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Article V. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or, if the Property Trustee
does not also act as the Delaware Trustee, the Delaware Trustee.
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
bank account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of
the Securities and, on the receipt of payments of funds made in respect
of the Debentures held by the Property Trustee, deposit such funds into
the Property Account and, without any further acts of the Property
Trustee or the Regular Trustees, promptly make payments to the Holders
of the Preferred Securities and Common Securities from the Property
Account in accordance with Section 6.01. Funds in the Property Account
shall be held uninvested, and without liability for interest thereon,
until disbursed in accordance with this Declaration. The Property
Account shall be an account which is maintained with a banking
institution whose long term unsecured indebtedness is rated by a
"nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act, at
least investment grade;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption of the
Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Preferred Securities and
the Common Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect promptly pursuant to terms of the
Securities the distribution of Debentures to Holders of Securities upon
the election of the Holder of Common Securities to distribute the
Debentures to Holders of Securities and dissolve the Trust;
(iv) have the legal power to exercise all of the rights,
powers and privileges of a holder of the Debentures under the Indenture
and, if an Event of Default occurs and is continuing, the Property
Trustee, subject to Section 3.10(e),
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shall for the benefit of the Holders of the Securities, enforce its
rights as holder of the Debentures under the Indenture, subject to the
rights of the Holders of the Preferred Securities pursuant to the terms
of this Declaration, the Business Trust Act and the Trust Indenture
Act; and
(v) be a United States Person.
(d) The Property Trustee shall take all actions and perform such duties
as may be specifically required of the Property Trustee pursuant to the terms of
the Securities set forth in Exhibits B and C hereto.
(e) If an Event of Default has occurred and is continuing, then the
Holders of a Majority of Outstanding Preferred Securities will have, subject to
Section 3.12(c)(iv), the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee or to
direct the exercise of any trust or power conferred upon the Property Trustee
under this Declaration, including the right to direct the Property Trustee to
exercise the remedies available to it as a holder of the Debentures. If the
Property Trustee fails to enforce its rights under the Debentures, a Holder of
Preferred Securities may, to the fullest extent permitted by law, after a period
of 30 days has elapsed since such Holder's written request to the Property
Trustee to enforce such rights, institute a legal proceeding directly against
the Sponsor to enforce the Property Trustee's rights under the Debentures
without first instituting any legal proceeding against the Property Trustee or
any other Person; provided that, if an Event of Default has occurred and is
continuing and such event is attributed to the failure of the Sponsor to pay
principal of, any premium or interest on or any Additional Amounts with respect
to the Debentures on the date such amounts are otherwise payable (or in the case
of redemption, on the redemption date), then a Holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to such Holder of
such amounts on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder (a "Holder Direct
Action") on or after the respective due date specified in the Debentures. In
connection with such Holder Direct Action, the Sponsor will be subrogated to the
rights of such Holder of Preferred Securities to the extent of any payment made
by the Sponsor to such Holders of Preferred Securities in such Holder Direct
Action. Except as provided in the preceding sentences, the Holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
(f) All moneys deposited in the Property Account and all Debentures
held by the Property Trustee for the benefit of the Holders of the Securities
will not be subject to any right, charge, security interest, lien or claim of
any kind in favor of, or for the benefit of the Property Trustee or its agents
or their creditors.
(g) The Property Trustee shall, within 90 days after the occurrence of
a default with respect to the Securities actually known to a Responsible Officer
of the Property Trustee, transmit by mail, first class postage prepaid, to the
Holders of the Securities, as their names and addresses appear upon the
register, notice of such default with respect to the Securities known to the
Property Trustee, unless such default shall have been cured before the giving of
such notice (the term "default" for the purposes of this Section 3.10(g) being
hereby defined to be an Indenture Event of Default, not including any periods of
grace provided in the
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Indenture and irrespective of the giving of any notice provided therein);
provided that, except in the case of default in the payment of the principal of,
any premium or interest on or any Additional Amounts with respect to any of the
Debentures, the Property Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Property Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of the Securities. The Property Trustee shall not be deemed to have
knowledge of any default, except (i) a default in the payment of principal,
premium or interest on the Debentures or (ii) any default as to which the
Property Trustee shall have received written notice or a Responsible Officer
charged with the administration of this Declaration shall have obtained written
notice of such default.
(h) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds
thereof distributed to the Holders of Securities pursuant to the terms
of the Securities; or
(ii) a Successor Property Trustee has been appointed and
accepted that appointment in accordance with Article V.
(i) The Property Trustee shall act as paying agent in respect of the
Common Securities and, if the Preferred Securities are not in book entry only
form, the Preferred Securities and, subject to Section 3.08(q), may authorize
one or more Persons (each, a "Paying Agent") to pay Distributions, Additional
Amounts, redemption payments or liquidation payments on behalf of the Trust with
respect to the Preferred Securities. Any such Paying Agent shall comply with
Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed by
the Property Trustee, after consultation with the Regular Trustees, at any time
and a successor Paying Agent or additional Paying Agents may be appointed at any
time by the Property Trustee, subject to Section 3.08(q).
(j) The Property Trustee shall give prompt written notice to the
Holders of the Securities of any notice received by it from Centex of its
election to defer payments of interest on or any Additional Amounts with respect
to the Debentures by extending the interest payment period with respect thereto.
(k) Subject to this Section 3.10, the Property Trustee shall have none
of the powers or the authority of the Regular Trustees set forth in Section
3.08.
(l) The Property Trustee shall exercise the powers, duties and rights
set forth in this Section 3.10 and Section 3.12 in a manner which is consistent
with the purposes and functions of the Trust set out in Section 3.05, and the
Property Trustee shall not take any action which is inconsistent with the
purposes and functions of the Trust set forth in Section 3.05.
SECTION 3.11 Delaware Trustee
(a) Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees or the Property Trustee described in this
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Declaration. The Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Business Trust Act
and shall be a United States Person.
(b) It is expressly understood and agreed by the parties hereto that in
fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust,
(i) any agreements or instruments executed and delivered by Chase Manhattan Bank
USA, National Association are executed and delivered not in its individual
capacity but solely as Delaware Trustee under this Declaration in the exercise
of the powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Trust is made and intended not as representations, warranties, covenants,
undertakings and agreements by Chase Manhattan Bank USA, National Association in
its individual capacity but is made and intended for the purpose of binding only
the Trust, and (iii) under no circumstances shall Chase Manhattan Bank USA,
National Association in its individual capacity be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Declaration, except if such breach or failure
is due to any gross negligence or willful misconduct of the Delaware Trustee.
SECTION 3.12 Certain Rights and Duties of the Property Trustee
(a) The Property Trustee, before the occurrence of an Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration, and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.06), the Property Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Declaration, and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Declaration,
and no implied covenants or obligations shall be read into
this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any
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certificates or opinions furnished to the Property Trustee and
conforming to the requirements of this Declaration; provided,
however, that in the case of any such certificates or opinions
that by any provision hereof or the Trust Indenture Act are
specifically required to be furnished to the Property Trustee,
the Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Declaration or the Trust Indenture Act, as the case
may be;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority of Outstanding Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Property Trustee hereunder or under the Indenture, or exercising any
trust or power conferred upon the Property Trustee under this
Declaration; and
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Declaration or adequate indemnity against such risk or liability is not
furnished to it.
(c) Subject to the provisions of Section 3.12(a) and (b):
(i) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part
and, if the Trust is excluded from the definition of Investment Company
solely by means of Rule 3a-7, subject to the requirements of Rule 3a-7,
request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the Regular
Trustees;
(ii) the Property Trustee (A) may consult with counsel
selected by it in good faith and with due care and the written advice
or opinion of such counsel with respect to legal matters shall be full
and complete protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon and in
accordance with such advice and opinion and (B) shall have the right at
any time to seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
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(iii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed by it in good faith and with due care;
(iv) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless such Holder shall
have furnished to the Property Trustee security and indemnity
satisfactory to the Property Trustee against the costs, expenses
(including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction; provided
that nothing contained in this clause (iv) shall relieve the Property
Trustee of the obligation, upon the occurrence of an Event of Default
(which has not been cured or waived) to exercise such of the rights and
powers vested in it by this Declaration, and to use the same degree of
care and skill in this exercise as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs;
(v) any action taken by the Property Trustee or its agents
hereunder shall bind the Holders of the Securities, and the signature
of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action; and no third party shall be
required to inquire as to the authority of the Property Trustee to so
act, or as to its compliance with any of the terms and provisions of
this Declaration, both of which shall be conclusively evidenced by the
Property Trustee's or its agent's taking such action; and
(vi) whenever in the administration of this Declaration the
Property Trustee shall deem it necessary or desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Property Trustee may request
instructions from the Holders of the Securities, which instructions
shall be given by the Holders of the same proportion in liquidation
amount of the Securities as would be entitled to direct the Property
Trustee under the terms of the Securities in respect of such remedy,
right or action.
(d) The Property Trustee, in its individual or any other capacity, may
become the owner or pledgee of Preferred Securities and may otherwise deal with
the Sponsor with the same rights it would have if it were not the Property
Trustee.
(e) Except as required by Section 3.10(c) hereof, all moneys received
by the Property Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Property
Trustee shall be under no liability for interest on any moneys received by it
hereunder except such as it may agree in writing to pay thereon.
(f) The Sponsor covenants and agrees to pay to the Property Trustee
from time to time, and the Property Trustee shall be entitled to, such
compensation as the Regular Trustees and the Property Trustee shall from time to
time agree in writing (which shall not be
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limited by any provision of law in regard to the compensation of a Property
Trustee of an express trust) for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Property Trustee, and the Sponsor will pay or
reimburse the Property Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Property Trustee in
accordance with any of the provisions of this Declaration (including the
reasonable compensation and the reasonable expenses and disbursements of its
counsel and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Sponsor also covenants to indemnify each of the Property Trustee or any
predecessor Property Trustee and their officers, agents, directors and employees
for, and to hold them harmless against, any and all loss, liability, damage,
claim or expense including taxes (other than taxes based upon, measured by or
determined by the income, profit, franchise or doing business of the Property
Trustee) incurred without negligence or bad faith on the part of the Property
Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim (whether asserted by the Sponsor, any Holder
or any other Person) of liability in the premises. The provisions of this
subpart (f) of this Section 3.12 shall survive the termination of this
Declaration and resignation or removal of the Property Trustee.
(g) Whether or not expressly stated, every provision of this
Declaration pertaining to the Property Trustee shall be subject to this Section
3.12.
SECTION 3.13 Registration Statement and Related Matters
In accordance with the Original Declaration, Centex, as the sponsor of
the Trust, was authorized (a) to prepare and file with the Commission and
execute, in each case on behalf of the Trust, (i) a Registration Statement on
Form S-3 (Registration No. 333-_______) (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of the
Preferred Securities and certain other securities of the Sponsor and (ii) if the
Sponsor deemed it desirable, a Registration Statement on Form 8-A (the "1934 Act
Registration Statement"), including all pre-effective and post-effective
amendments thereto, relating to the registration of the Preferred Securities
under Section 12 of the Exchange Act; (b) if the Sponsor deemed it desirable, to
prepare and file with New York Stock Exchange, Inc. or any other automated
quotation system, exchange or over-the-counter market (collectively, the
"Exchanges") and execute on behalf of the Trust a listing application or
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on any Exchange; (c) to prepare and file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Sponsor, on behalf of the Trust, deemed necessary or desirable
to register the Preferred Securities under the securities or "Blue Sky" laws of
such jurisdictions as the Sponsor, on behalf of the Trust, deemed necessary or
desirable; (d) to negotiate the terms of and execute on behalf of the Trust the
Underwriting Agreement; and (e) to execute and deliver on behalf of the Trust
letters or documents to, or instruments for filing with, the Clearing Agency
relating to the Preferred Securities. In the event that any filing referred to
in clauses (a)-(c) above is required by the rules and regulations of the
Commission, any Exchange, the National Association of Securities Dealers, Inc.
or state
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securities or blue sky laws, to be executed on behalf of the Trust by the
Regular Trustees, the Regular Trustees, in their capacities as Trustee of the
Trust, are hereby authorized to join in any such filing and to execute on behalf
of the Trust any and all of the foregoing. In connection with all of the
foregoing, each Regular Trustee, solely in its capacity as Trustee of the Trust,
has constituted and appointed, and hereby confirms the appointment of,
___________, ___________ and ___________, and each of them, as his, her or its,
as the case may be, true and lawful attorneys-in-fact, and agents, with full
power of substitution and resubstitution, for such Trustee or in such Trustee's
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as such Trustee might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his or her substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
SECTION 3.14 Filing of Amendments to Certificate of Trust
The Certificate of Trust as filed with the Secretary of State of the
State of Delaware on November 9, 2000 is attached hereto as Exhibit A. On or
after the date of execution of this Declaration, the Regular Trustees shall
cause the filing with the Secretary of State of the State of Delaware of such
amendments, if any, to the Certificate of Trust as the Regular Trustees shall
deem necessary or desirable.
SECTION 3.15 Execution of Documents by the Regular Trustees
Except as otherwise required by the Business Trust Act with respect to
the Certificate of Trust or otherwise, any Regular Trustee, or if there is only
one, such Regular Trustee is authorized to execute and deliver on behalf of the
Trust any documents which the Regular Trustees have the power and authority to
execute or deliver pursuant to this Declaration.
SECTION 3.16 Trustees Not Responsible for Recitals or Issuance of
Securities
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.17 Duration of the Trust
The Trust, absent dissolution pursuant to the provisions of Article
VIII hereof, shall continue without dissolution until ___________, ____.
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SECTION 3.18 Mergers
(a) The Trust may not merge with or into, convert into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except as described in
Section 3.18(b) and (c) of this Declaration or Section 3(a) of Exhibits B or C
to the Declaration.
(b) The Trust may, at the request of a Majority of Outstanding Common
Securities, with the consent of the Regular Trustees or, if there are more than
two, a majority of the Regular Trustees and without the consent of the Holders
of Preferred Securities, the Delaware Trustee or the Property Trustee, merge
with or into, convert into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to, a trust organized as such under the laws of any
State of the United States; provided that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities and this Declaration; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Securities (the
"Successor Securities") so long as the Successor Securities
rank the same as the Securities rank with respect to
Distributions and payments upon liquidation, redemption and
otherwise;
(ii) a Majority of Outstanding Common Securities, by vote,
expressly appoints a trustee of the Successor Entity that possesses the
same powers and duties as the Property Trustee as the holder of the
Debentures;
(iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any
national securities exchange or with another organization in which the
Preferred Securities are then listed or quoted, if any;
(iv) if the Preferred Securities (including any Successor
Securities) are rated (including any public information rating) by any
nationally recognized statistical rating organization prior to such
transaction, such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities), or if the Debentures
are so rated, the Debentures, to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders (including the
holders of any Successor Securities) in any material respect (other
than with respect to any dilution of such Holders' interests in the new
entity);
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(vi) such Successor Entity has purposes substantially
identical to those of the Trust;
(vii) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease would not cause any of the
following:
(A) the rights, preferences and privileges of the
Holders (including the holders of any Successor Securities) to
be adversely affected in any material respect (other than with
respect to any dilution of the Holders' interest in the new
entity);
(B) the Trust (or the Successor Entity) to be
required to register as an Investment Company under the
Investment Company Act; or
(C) the Trust (or the Successor Entity) to be
classified as other than a grantor trust for United States
Federal income tax purposes;
and the Sponsor and the Regular Trustees shall have received an Opinion
of Counsel, who shall not be an employee of the Sponsor and who shall be
experienced in such matters, to that effect;
(viii) prior to such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Sponsor
has received an Officers' Certificate that such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the
Holders (including the holders of any Successor Securities) in any
material respect (other than with respect to any dilution of the
Holders' interest in the new entity);
(ix) the Sponsor or any permitted successor or assignee under
the Preferred Securities Guarantee guarantees the obligations of such
Successor Entity under the Successor Securities at least to the extent
provided by the Preferred Securities Guarantee; and
(x) there shall have been furnished to the Property Trustee an
Officers' Certificate and an Opinion of Counsel, each to the effect
that all conditions precedent in this Declaration to such transaction
have been satisfied.
(c) Notwithstanding Section 3.18(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, convert into, or be replaced by, or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to, any other Person or permit any other Person to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, conversion, replacement, conveyance,
transfer or lease would cause the Trust or the Successor Entity not to be
classified as a grantor trust for United States Federal income tax purposes.
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SECTION 3.19 Property Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount Securities, such portion of the liquidation amount as
may be specified in the terms of such Securities) and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Securities or the rights of any Holder thereof to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE IV
SPONSOR
SECTION 4.01 Purchase of Common Securities by the Sponsor
On the Closing Date, the Sponsor will purchase Common Securities issued
by the Trust at the same time as the Preferred Securities to be issued on such
date are issued, such purchase to be in an amount equal to or greater than 3% of
the total capital of the Trust. [In the event and to the extent the
over-allotment option granted by the Trust and the Sponsor pursuant to the
Underwriting Agreement is exercised by such underwriters, on the Option Closing
Date, the Sponsor will purchase Common Securities issued by the Trust at the
same time as the
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Preferred Securities to be issued on such date are issued, such purchase to be
in an amount equal to or greater than 3% of the total capital of the Trust.]
SECTION 4.02 Expenses
(a) In connection with the purchase of the Debentures by the Trust, the
Sponsor, in its capacity as Sponsor, shall be responsible for and shall pay for
all debts and obligations (other than with respect to the Securities) and all
current and future costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the issuance
of the Preferred Securities to initial purchasers thereof (including any
commissions payable to such purchasers), the fees and expenses (including
reasonable counsel fees and expenses) of the Trustees (including any amounts
payable under Article X), the costs and expenses relating to the operation of
the Trust, including, without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition and disposition of Trust assets).
(b) In connection with the purchase of the Debentures by the Trust, the
Sponsor, in its capacity as Sponsor, shall pay any and all taxes (other than
United States withholding taxes attributable to the Trust or its assets) of the
Trust and all liabilities, costs and expenses of the Trust with respect to such
taxes.
(c) The Sponsor's obligations under this Section 4.02 shall be for the
benefit of, and shall be enforceable by, any Person to whom any such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.02 directly against the Sponsor, and
the Sponsor irrevocably waives any right or remedy to require that any such
Creditor take any action against the Trust or any other Person before proceeding
against the Sponsor.
(d) The Sponsor shall be subrogated to all (if any) rights of the Trust
in respect of any amounts paid to any Creditor by the Sponsor under this Section
4.02.
ARTICLE V
TRUSTEES
SECTION 5.01 Number of Trustees; Qualifications
(a) The number of Trustees initially shall be five (5). Subject to
Section 5.02(a), at any time and without cause (i) before the issuance of the
Securities, the Sponsor may, by written instrument, increase or decrease the
number of, and appoint, remove and replace, the Trustees, and (ii) after the
issuance of the Securities the number of Trustees may be increased or decreased
solely by, and Trustees may be appointed, removed or replaced solely by, vote of
Holders of Common Securities representing a Majority of Outstanding Common
Securities voting as a class; provided that in any case:
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(i) the number of Trustees shall be at least five (5) unless
the Trustee that acts as the Property Trustee also acts as the Delaware
Trustee, in which case the number of Trustees shall be at least four
(4);
(ii) if required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be either a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and
otherwise is permitted to act as a Trustee hereunder under the laws of
the State of Delaware, except that if the Property Trustee has its
principal place of business in the State of Delaware and otherwise is
permitted to act as a Trustee hereunder under the laws of the State of
Delaware, then the Property Trustee shall also be the Delaware Trustee
and Section 3.11 shall have no application;
(iii) there shall at all times be a Property Trustee hereunder
which shall satisfy the requirements of Section 5.01(c);
(iv) each Trustee shall be a United States Person; and
(v) each Trustee, including any employee, agent, manager,
contractor, advisor, consultant and attorney employed or otherwise
engaged by, or any other delegee of, any Trustee, shall at all times
act as Trustee in its individual capacity on its own behalf and will
not at any time, in its capacity as Trustee, be under (or subject to)
the control or direction of Centex (pursuant to a contractual
arrangement or otherwise).
Each Trustee shall be either a natural person at least 21 years of age or a
legal entity which shall act through one or more duly appointed representatives.
(b) The initial Regular Trustees shall be:
-----------------------------
-----------------------------
-----------------------------
2728 North Harwood
Dallas, Texas 75201
(c) There shall at all times be one Trustee which shall act as the
Property Trustee. In order to act as the Property Trustee hereunder, such
Trustee shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation or national banking association
organized and doing business under the laws of the United States of
America or any State or Territory thereof or of the District of
Columbia, or a corporation, national banking association or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least
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$50,000,000, and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such
corporation or national banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then for the
purposes of this Section 5.01(c)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published; and
(iii) if the Trust is excluded from the definition of an
Investment Company solely by reason of Rule 3a-7 and to the extent Rule
3a-7 requires a trustee having certain qualifications to hold title to
the "eligible assets" (as defined in Rule 3a-7) of the Trust, the
Property Trustee shall possess those qualifications.
If at any time the Property Trustee shall cease to satisfy the
requirements of clauses (i)-(iii) above, the Property Trustee shall immediately
resign in the manner and with the effect set out in Section 5.02(c). If the
Property Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and
the Holders of the Common Securities (as if such Holders were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act. The
Preferred Securities Guarantee and the Indenture shall be deemed to be
specifically described in this Declaration for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
The initial Trustee which shall serve as the Property Trustee is The
Chase Manhattan Bank, whose address is as set forth in Section 14.01(b).
(d) The initial Trustee which shall serve as the Delaware Trustee is
Chase Manhattan Bank USA, National Association, whose address is as set forth in
Section 14.01(c).
(e) Any action taken by the Holders of Common Securities pursuant to
this Article V shall be taken at a meeting of the Holders of Common Securities
convened for such purpose or by written consent as provided in Section 12.02.
(f) No amendment may be made to this Section 5.01 which would change
any rights with respect to the number, existence or appointment and removal of
Trustees, except with the consent of each Holder of Common Securities.
SECTION 5.02 Appointment, Removal and Resignation of the Trustees
(a) (i) The Trustee that acts as the Property Trustee shall not be
removed in accordance with Section 5.01(a) until a successor Trustee possessing
the qualifications to act as the Property Trustee under Section 5.01(c) (a
"Successor Property Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Property Trustee
and delivered to the Regular Trustees, the Sponsor and the Property Trustee
being removed; and
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(ii) the Trustee that acts as the Delaware Trustee
shall not be removed in accordance with Section 5.01(a) until a
successor Trustee possessing the qualifications to act as the Delaware
Trustee under Section 5.01(a)(iii) (a "Successor Delaware Trustee") has
been appointed and has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and delivered to the
Regular Trustees, the Sponsor and the Delaware Trustee being removed.
(b) A Trustee appointed to office shall hold such office until his
successor shall have been appointed or until his death, removal or resignation.
(c) Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument (a "Resignation Request") in writing
signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the
Property Trustee shall be effective until:
(A) a Successor Property Trustee has been appointed
and has accepted such appointment by instrument executed by
such Successor Property Trustee and delivered to the Regular
Trustees, the Sponsor and the resigning Property Trustee; or
(B) if the Trust is excluded from the definition of
an Investment Company solely by reason of Rule 3a-7, until the
assets of the Trust have been completely liquidated and the
proceeds thereof distributed to the Holders of the Securities;
and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Regular Trustees, the Sponsor and the resigning Delaware Trustee.
(d) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in Section 5.01
and this Section 5.02 within 60 days after delivery of a notice of removal or a
Resignation Request, the Property Trustee or Delaware Trustee being removed or
resigning, as the case may be, may petition any court of competent jurisdiction
for appointment of a Successor Property Trustee or Successor Delaware Trustee,
as the case may be. Such court may thereupon after prescribing such notice, if
any, as it may deem proper, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(e) No amendment may be made to this Section 5.02 which would change
any rights with respect to the appointment or removal of Trustees, except with
the consent of each Holder of Common Securities.
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SECTION 5.03 Vacancies Among the Trustees
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.01 or if the number of Trustees is
increased pursuant to Section 5.01, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with the requirements of this
Article V.
SECTION 5.04 Effect of Vacancies
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee, or
any one of them, shall not operate to dissolve, terminate or annul the Trust.
Whenever a vacancy in the number of Regular Trustees shall occur until such
vacancy is filled as provided in this Article V, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 5.05 Meetings
Meetings of the Regular Trustees shall be held from time to time upon
the call of any Regular Trustee. Regular meetings of the Regular Trustees may be
held at a time and place fixed by resolution of the Regular Trustees. Notice of
any in-person meeting of the Regular Trustees shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meeting of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before such meeting.
Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Regular Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless otherwise provided in this
Declaration, any action of the Regular Trustees may be taken at a meeting by
vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting and without prior notice by the
unanimous written consent of the Regular Trustees.
SECTION 5.06 Delegation of Power
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any registration statement or amendment
thereto or other document or schedule filed with the Commission or making any
other governmental filing (including, without limitation, the filings referred
to in Section 3.13).
(b) The Regular Trustees shall have power to delegate from time to time
to such of their number or to officers of the Trust the doing of such things and
the execution of such
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instruments, either in the name of the Trust or the names of the Regular
Trustees or otherwise, as the Regular Trustees may deem expedient, to the extent
such delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth in this Declaration.
SECTION 5.07 Merger, Conversion, Consolidation or Succession to Business
Any Person into which the Property Trustee or the Delaware Trustee or
any Regular Trustee that is not a natural person, as the case may be, may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Property
Trustee or the Delaware Trustee or the Regular Trustees, as the case may be,
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Property Trustee or the Delaware Trustee or any
Regular Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee or that Regular Trustee, as the case may be,
hereunder, provided that such Person shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.01 Distributions
Holders shall receive periodic distributions, redemption payments,
liquidation distributions and any other payments in accordance with the
applicable terms of the relevant Holder's Securities as set forth in Exhibits B
and C hereto ("Distributions"). If and to the extent that Centex makes a payment
of principal of, any premium or interest on or any Additional Amounts with
respect to the Debentures held by the Property Trustee (the amount of any such
payment being a "Payment Amount"), the Property Trustee shall and is directed,
to the extent funds are available for that purpose, promptly to make a
Distribution of the Payment Amount to Holders in accordance with the terms of
the Securities as set forth in Exhibits B and C hereto. The record dates and
payment dates for Distributions shall be the same as the record dates and
payment dates for the Debentures held by the Property Trustee.
ARTICLE VII
ISSUANCE OF THE SECURITIES
SECTION 7.01 General Provisions Regarding the Securities
(a) The Regular Trustees shall issue the Securities on behalf of the
Trusts in fully registered form representing undivided beneficial interests in
the assets of the Trust in accordance with Section 7.01(b) and for the
consideration specified in Section 3.03.
(b) The Regular Trustees shall issue on behalf of the Trust one class
of preferred securities representing preferred undivided beneficial interests in
the assets of the Trust having such terms as are set forth in Exhibit B (the
"Preferred Securities") hereto, which terms are incorporated by reference in,
and made a part of, this Declaration as if specifically set forth herein, and
one class of common securities representing common undivided beneficial
interests in the assets of the Trust having such terms as are set forth in
Exhibit C (the "Common
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Securities") hereto, which terms are incorporated by reference in, and made a
part of, this Declaration as if specifically set forth herein. The Trust shall
have no securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by one or
more of the Regular Trustees. Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee. Typographical and other
minor errors or defects in any such reproduction of any such signature shall not
affect the validity of any Certificate. In case any Regular Trustee who shall
have signed any of the Certificates shall cease to be such Regular Trustee
before the Certificate so signed shall be delivered by the Trust, such
Certificate nevertheless may be delivered as though the person who signed such
Certificate had not ceased to be such Regular Trustee; and any Certificate may
be signed on behalf of the Trust by such persons as, at the actual date of the
execution of such Certificate, shall be the Regular Trustees, although at the
date of the execution and delivery of this Declaration any such person was not a
Regular Trustee. Certificates shall be typewritten, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or automated
quotation system on which Securities may be listed or traded, or with any rule
or regulation of the Clearing Agency, or to conform to usage. Pending the
preparation of definitive Certificates, one or more of the Regular Trustees on
behalf of the Trust may execute temporary Certificates (printed, lithographed or
typewritten), in substantially the form of the definitive Certificates in lieu
of which they are issued, but with such omissions, insertions and variations as
may be appropriate for temporary Certificates, all as may be determined by the
Regular Trustees. Each temporary Certificate shall be executed by the one or
more of Regular Trustees on behalf of the Trust upon the same conditions and in
substantially the same manner, and with like effect, as definitive Certificates.
Without unnecessary delay, the Regular Trustees on behalf of the Trust will
execute and furnish definitive Certificates and thereupon any or all temporary
Certificates may be surrendered to the transfer agent and registrar in exchange
therefor (without charge to the Holders). Each Preferred Security Certificate,
whether in temporary or definitive form, shall be countersigned upon receipt of
a written order of the Trust signed by one Regular Trustee, by the manual
signature of an authorized signatory of the Person acting as registrar and
transfer agent for the Preferred Securities, which shall initially be the
Property Trustee.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by this Declaration.
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(g) Upon issuance of the Securities as provided in this Declaration,
the Regular Trustees on behalf of the Trust shall return to Centex the $10
constituting initial trust assets as set forth in the Original Declaration.
SECTION 7.02 [Conversion Agent
The Trust shall maintain an office or agency where Preferred Securities
may be presented for conversion pursuant to the terms thereof set forth in
Exhibit B hereto ("Conversion Agent"). The Trust may appoint the Conversion
Agent and may appoint one or more additional Conversion Agents in such other
locations as it may determine. The term "Conversion Agent" includes any
additional Conversion Agent. The Trust may change any Conversion Agent without
prior notice to any Holders. If the Trust fails to appoint or maintain another
entity as Conversion Agent, the Property Trustee will act as such. The Property
Trustee or any of its Affiliates may act as Conversion Agent. The Conversion
Agent shall be entitled to the rights and protections extended to the Property
Trustee when acting in such capacity.
The Property Trustee is hereby initially appointed as the Conversion
Agent for the Preferred Securities.]
ARTICLE VIII
DISSOLUTION OF THE TRUST
SECTION 8.01 Dissolution of the Trust
The Trust shall dissolve:
(a) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to the
Holders of the Securities in accordance with the terms of the Securities; or
(b) when all of the Debentures shall have been distributed to the
Holders of the Securities in exchange for all of the Securities in accordance
with the terms of the Securities; or
(c) upon the expiration of the term of the Trust as set forth in
Section 3.17; or
(d) upon a decree of judicial dissolution;
(e) upon the occurrence of an Indenture Event of Default set forth in
Section 6.01(4) or (5) of the Indenture with respect to Centex or the Holder of
the Common Securities [; or
(f) upon the distribution of shares of Common Stock to all Holders upon
conversion of all outstanding Securities].
Upon dissolution and the completion of the winding up of the affairs of
the Trust, the Trust and this Declaration shall terminate when a certificate of
cancellation is filed by the Regular Trustees with the Secretary of State of the
State of Delaware. The Regular Trustees
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shall so file such a certificate as soon as practicable after the occurrence of
an event referred to in this Section 8.01.
The provisions of Sections 3.12 and 4.02 and Article X shall survive
the dissolution and termination of the Trust and this Declaration.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.01 Transfer of Securities
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) The Holder of the Common Securities may not transfer the Common
Securities except to the Sponsor or an Affiliate thereof in compliance with
applicable law (including the Securities Act and applicable state securities and
blue sky laws). Upon any such transfer, such Holder shall deliver to the
Trustees a certificate or affidavit executed by or on behalf of such Holder that
the transfer is in compliance with this Section 9.01(c). To the fullest extent
permitted by law, any attempted transfer of the Common Securities other than as
set forth in this Section 9.01(c) shall be null and void.
SECTION 9.02 Transfer of Certificates
The Regular Trustees shall provide for the registration of Certificates
and of transfers of Certificates, which will be effected without charge but only
upon payment (with such indemnity as the Regular Trustees and the transfer agent
and registrar may require) in respect of any tax or other government charges
which may be imposed in relation to it. Upon surrender for registration of
transfer of any Certificate, one or more of the Regular Trustees shall cause one
or more new Certificates to be issued in the name of the designated transferee
or transferees. Every Certificate surrendered for registration of transfer shall
be accompanied by a written instrument of transfer in form satisfactory to the
Regular Trustees and the transfer agent and registrar duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer shall be canceled or caused to be
canceled by the Regular Trustees. A transferee of a Certificate shall be
entitled to the rights and subject to the obligations of a Holder hereunder upon
the receipt by such transferee of a Certificate. By acceptance of a Certificate,
each transferee shall be deemed to have agreed to be bound by this Declaration.
SECTION 9.03 Deemed Security Holders
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or
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other claim to or interest in such Certificate or in the Securities represented
by such Certificate on the part of any Person, whether or not the Trustees shall
have actual or other notice thereof.
SECTION 9.04 Book Entry Interests
Unless otherwise specified in the terms of the Preferred Securities,
the Preferred Security Certificates, on original issuance [(including Preferred
Securities, if any, issued on the Option Closing Date pursuant to the exercise
of the over-allotment option set forth in the Underwriting Agreement)], will be
issued in the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Trust. Such Global Certificates shall
initially be registered on the books and records of the Trust in the name of
Cede & Co., the nominee of DTC, and no Preferred Security Beneficial Owner will
receive a definitive Preferred Security Certificate representing such Preferred
Security Beneficial Owner's interests in such Global Certificates, except as
provided in Section 9.07. Unless and until definitive, fully registered
Preferred Security Certificates (the "Definitive Preferred Security
Certificates") have been issued to the Preferred Security Beneficial Owners
pursuant to Section 9.07:
(a) the provisions of this Section 9.04 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment of
Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of the Preferred Securities and the sole
holder of the Global Certificates and, except as set forth herein in Section
9.07 or in Rule 3a-7 (if the Trust is excluded from the definition of an
Investment Company solely by reason of Rule 3a-7) with respect to the Property
Trustee, shall have no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.04 conflict
with any other provisions of this Declaration, the provisions of this Section
9.04 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security Beneficial
Owners and the Clearing Agency and/or the Clearing Agency Participants. DTC will
make book entry transfers among the Clearing Agency Participants and receive and
transmit payments of Distributions on the Global Certificates to such Clearing
Agency Participants; provided that solely for the purposes of determining
whether the Holders of the requisite amount of Preferred Securities have voted
on any matter provided for in this Declaration, so long as definitive Preferred
Security Certificates have not been issued (pursuant to Section 9.07 hereof),
the Trustees may conclusively rely on, and shall be protected in relying on, any
written instrument (including a proxy) delivered to the Trustees by the Clearing
Agency setting forth the Preferred Security Beneficial Owners' votes or
assigning the right to vote on any matter to any other Persons either in whole
or in part.
SECTION 9.05 Notices to Holders of Certificates
Whenever a notice or other communication to the Holders is required to
be given under this Declaration, unless and until Definitive Preferred Security
Certificates shall have been
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issued pursuant to Section 9.07, the relevant Trustees shall give all such
notices and communications, specified herein to be given to Holders of Preferred
Securities, to the Clearing Agency and, with respect to any Preferred Security
Certificate registered in the name of a Clearing Agency or the nominee of a
Clearing Agency, the Trustees shall have no notice obligations to the Preferred
Security Beneficial Owners.
SECTION 9.06 Appointment of Successor Clearing Agency
If any Clearing Agency elects to discontinue its services as securities
depository with respect to the Preferred Securities, the Regular Trustees may,
in their sole discretion, appoint a successor Clearing Agency with respect to
the Preferred Securities.
SECTION 9.07 Definitive Preferred Securities Certificates
If (i) a Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.06, (ii) an Event of Default has occurred with respect to
the Preferred Securities and is continuing and the Property Trustee has received
a request from the Clearing Agency to issue Definitive Preferred Security
Certificates in lieu of all or a portion of the Global Certificates (in which
case the Regular Trustees shall deliver such Definitive Preferred Security
Certificates within 30 days of such request) or (iii) the Regular Trustees elect
after consultation with the Sponsor to terminate the book entry system through
the Clearing Agency with respect to the Preferred Securities, then (x)
Definitive Preferred Security Certificates shall be prepared by the Regular
Trustees on behalf of the Trust with respect to such Preferred Securities and
(y) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Preferred Security Certificates to be delivered to Preferred Security
Beneficial Owners in accordance with the instructions of the Clearing Agency.
Upon such event, the Regular Trustees shall give notice thereof to the Debenture
Trustee. Neither the Trustees nor the Trust shall be liable for any delay in
delivery of such instructions and each of them may conclusively rely on, and
shall be protected in relying on, such instructions.
SECTION 9.08 Mutilated, Destroyed, Lost or Stolen Certificates
If (a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and (b) there
shall be delivered to the Regular Trustees such security or indemnity as may be
required by them to keep each of them and the Trust harmless, then in the
absence of notice that such Certificate shall have been acquired by a bona fide
purchaser, one or more of the Regular Trustees on behalf of the Trust shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.08,
the Regular Trustees may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Certificate issued pursuant to this Section 9.08 shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
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ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.01 Exculpation
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence (or, in the
case of the Property Trustee, negligence) or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
of Securities, in their capacities as Holders, shall be entitled to the same
limitation of liability that is extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State of Delaware.
SECTION 10.02 Indemnification
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of gross negligence (or, in the case of the Property Trustee,
negligence) or willful misconduct with respect to such acts or omissions.
(b) The provisions of this Section 10.02 shall survive the termination
of this Declaration or the resignation or removal of any Trustee.
SECTION 10.03 Outside Business
The Sponsor and any Trustee (in the case of the Property Trustee,
subject to Section 5.01(c)) may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and
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the Trust and the Holders of Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. Neither the
Sponsor nor any Trustee shall be obligated to present any particular investment
or other opportunity to the Trust even if such opportunity is of a character
that, if presented to the Trust, could be taken by the Trust, and the Sponsor or
any Trustee shall have the right to take for its own account (individually or as
a partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Trustee may engage or be interested in any financial
or other transaction with the Sponsor or any Affiliate of the Sponsor or may act
as depository or trustee for, or, except as provided in Section 5.01(c), agent
in connection with, or act on any committee or body of holders of, securities or
other obligations of the Sponsor or any of its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.01 Fiscal Year
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.02 Certain Accounting Matters
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States Federal income tax purposes.
(b) If required by applicable law, the Regular Trustees shall, as soon
as available after the end of each Fiscal Year of the Trust, cause to be
prepared and mailed to each Holder of Securities unaudited financial statements
of the Trust for such Fiscal Year, prepared in accordance with generally
accepted accounting principles; provided that if the Trust is required to comply
with the periodic reporting requirements of Section 13(a) or 15(d) of the
Exchange Act, such financial statements for such Fiscal Year shall be examined
and reported on by a firm of independent certified public accountants selected
by the Regular Trustees (which firm may be the firm used by the Sponsor).
(c) The Regular Trustees shall cause to be duly prepared and mailed to
each Holder of Securities any United States Federal income tax information
statement or form required by the Code or the Treasury Regulations, containing
such information with regard to the Securities held by each Holder as is
required by the Code or the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements or forms within 30 days
after the end of each Fiscal Year of the Trust.
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(d) The Regular Trustees shall cause to be properly prepared and filed
on a timely basis with the appropriate taxing authority any United States
Federal income tax return or form as is required by the Code or the Treasury
Regulations, and any other tax returns or forms required to be filed by or on
behalf of the Trust with any state, local or other taxing authority.
SECTION 11.03 Banking
The Trust shall maintain one or more non-interest bearing bank accounts
in the name and for the sole benefit of the Trust; provided, however, that all
payments of funds in respect of the Debentures held by the Property Trustee
shall be made directly to the Property Account and no other funds from the Trust
shall be deposited in the Property Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; provided, however, that
the Property Trustee shall designate the sole signatories for the Property
Account.
SECTION 11.04 Withholding
The Trust and the Trustees shall comply with all withholding
requirements under applicable law. The Regular Trustees shall request, and the
Holders shall provide to the Trust, such forms or certificates as are necessary
to establish an available exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Regular Trustees to assist them in determining the extent of, and in
fulfilling, the Trust's withholding obligations. The Regular Trustee on behalf
of the Trust shall file required forms with applicable jurisdictions and, unless
an exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any amounts to any
authority with respect to Distributions or allocations to any Holder, the
Regular Trustees shall so notify the Property Trustee and shall provide such
information as is reasonably requested by the Property Trustee to enable the
Property Trustee to effect such withholding, and the amount withheld shall be
deemed to be a Distribution in the amount of the withholding to the Holder. In
the event of any claimed overwithholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount required to be withheld was
not withheld from a Distribution to a Holder, the Trust may reduce subsequent
Distributions to such Holder (or its successor) by the amount of such
underwithholding. Except as otherwise provided pursuant to the terms of the
Securities as set forth in Exhibits B and C hereto, no additional amounts shall
be paid to a Holder to compensate the Holder for any required withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.01 Amendments
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended by, and only
by, a written instrument executed by a majority of the Regular Trustees;
provided, however, that (i) no amendment or modification to this Declaration
shall be made, and any such purported amendment shall be void and ineffective:
(A) unless the Regular Trustees and the Property Trustee shall have first
received an Opinion of Counsel, who shall not be an employee of the Sponsor,
that such
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amendment is permitted by, and conforms to, the terms of this Declaration and
that all conditions precedent, if any, in this Declaration to the execution and
delivery of such amendment have been satisfied; and (B) to the extent the result
of such amendment would be to: (x) cause the Trust to fail to continue to be
classified for purposes of United States Federal income taxation as a grantor
trust that is not a foreign trust; (y) reduce or otherwise adversely affect the
rights or powers of the Property Trustee in contravention of the Trust Indenture
Act; or (z) cause the Trust to be deemed to be an Investment Company required to
be registered under the Investment Company Act; (ii) at such time after the
Trust has issued any Securities which remain outstanding, any amendment which
would adversely affect the rights, privileges or preferences of any Holder of
Securities may be effected only with such additional requirements as may be set
forth in the terms of such Securities; (iii) Section 4.02, Section 9.01(c),
10.01(c) and this Section 12.01 shall not be amended without the consent of all
of the Holders of the Securities; (iv) no amendment which reduces the rate at
which Distributions on the Securities are payable shall be made without the
consent of all of the Holders of the Securities; (v) no amendment which
adversely affects the rights, powers and privileges of the Property Trustee or
the Delaware Trustee shall be made without the consent of the Property Trustee
or the Delaware Trustee, respectively; (vi) Section 4.02 shall not be amended
without the consent of the Sponsor; and (vii) the rights of the Holders of
Common Securities under Article V to increase or decrease the number of, and to
appoint, replace or remove, Trustees shall not be amended without the consent of
each Holder of Common Securities.
(b) Notwithstanding Section 12.01(a), this Declaration may be amended
by a written instrument executed by a majority of the Regular Trustees without
the consent of the Holders of the Securities to (i) cure any ambiguity, (ii)
correct or supplement any provision in this Declaration that may be defective or
inconsistent with any other provision of this Declaration, (iii) with the
consent of the Sponsor, add to the covenants, restrictions or obligations of the
Sponsor; provided, however, that such consent shall not be required if the
effect of such amendment is to cause the Trust not to be classified for United
States Federal income tax purposes as a grantor trust, (iv) conform to any
changes in Rule 3a-7 (if the Trust is excluded from the definition of an
Investment Company solely by reason of Rule 3a-7) or any change in
interpretation or application of Rule 3a-7 (if the Trust is excluded from the
definition of an Investment Company solely by reason of Rule 3a-7) by the
Commission, (v) amend any other provisions with respect to matters or questions
arising under this Declaration which shall not be inconsistent with the other
provisions of this Declaration, (vi) modify, eliminate or add to any provisions
of this Declaration to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Securities are outstanding or to ensure that
the Trust will not be required to register as an Investment Company under the
Investment Company Act, and (vii) pursuant to Section 5.01, evidence the
acceptance of the appointment of a successor Trustee or fill a vacancy created
by an increase in the number of Regular Trustees; provided that any such
amendment does not adversely affect in any material respect the rights,
preferences or privileges of the Holders.
SECTION 12.02 Meetings of the Holders of Securities; Action by Written
Consent
(a) Meetings of the Holders of Preferred Securities and/or Common
Securities may be called at any time by the Regular Trustees (or as provided in
the terms of the Securities) to consider and act on any matter on which the
Holders of such class of Securities are entitled to
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act under the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange or automated quotation system on which the Preferred
Securities are then listed, traded or quoted. The Regular Trustees shall call a
meeting of the Holders of Preferred Securities or Common Securities, if directed
to do so by Holders of at least 10% of Outstanding Securities of such class.
Such direction shall be given by delivering to the Regular Trustees one or more
notices in writing stating that the signing Holders of Securities wish to call a
meeting and indicating the general or specific purpose for which the meeting is
to be called. Any Holders of Securities calling a meeting shall specify in
writing the Certificates held by the Holders of Securities exercising the right
to call a meeting and only those specified Certificates shall be counted for
purposes of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provision shall apply to meetings of the Holders of
Securities:
(i) Notice of any such meeting shall be given by mail to all
the Holders of Securities having a right to vote thereat not less than
seven (7) days nor more than sixty (60) days prior to the date of such
meeting. Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Declaration or the rules
of any stock exchange or automated quotation system on which the
Preferred Securities are then listed, traded or quoted, such vote,
consent or approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting and without prior notice if a
consent in writing setting forth the action so taken is signed by
Holders of Securities owning not less than the minimum aggregate
liquidation amount of Securities that would be necessary to authorize
or take such action at a meeting at which all Holders of Securities
having a right to vote thereon were present and voting. Prompt notice
of the taking of action without a meeting shall be given to the Holders
of Securities entitled to vote who have not consented in writing. The
Regular Trustees may specify that any written ballot submitted to the
Holders of Securities for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by the
Regular Trustees.
(ii) Each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of a Security is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of the Security executing it. Except as otherwise provided
herein or in the terms of the Securities, all matters relating to the
giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a
Delaware corporation.
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(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate.
(iv) Unless otherwise provided in the Business Trust Act, this
Declaration or the rules of any stock exchange or automated quotation
system on which the Preferred Securities are then listed, traded or
quoted, the Regular Trustees, in their sole discretion, shall establish
all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Holders of Securities, waiver of
any such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy or
any other matter with respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 13.01 Representations and Warranties of the Property Trustee
The Trustee which acts as the initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as the Property Trustee that:
(a) The Property Trustee is a national banking association or a banking
corporation with trust powers, duly organized, validly existing and in good
standing under the laws of the United States or the laws of the state of its
incorporation, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration.
(b) The execution, delivery and performance by the Property Trustee of
this Declaration have been duly authorized by all necessary corporate action on
the part of the Property Trustee. This Declaration has been duly executed and
delivered by the Property Trustee, and constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of this Declaration by the
Property Trustee does not conflict with or constitute a breach of the charter or
by-laws of the Property Trustee.
(d) No consent, approval or authorization of, or registration with or
notice to, any banking authority which supervises or regulates the Property
Trustee is required for the execution, delivery or performance by the Property
Trustee of this Declaration.
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(e) The Property Trustee satisfies the qualifications set forth in
Section 5.01(c).
SECTION 13.02 Representations and Warranties of the Delaware Trustee
The Trustee which acts as the initial Delaware Trustee represents and
warrants to the Trust and the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
the Delaware Trustee, that:
(a) The Delaware Trustee is a national banking association duly
organized, validly existing and in good standing, with corporate power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration.
(b) The execution, delivery and performance by the Delaware Trustee of
this Declaration have been duly authorized by all necessary corporate action on
the part of the Delaware Trustee. This Declaration has been duly executed and
delivered by the Delaware Trustee and constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any banking authority which supervises or regulates the Delaware
Trustee, if any, is required for the execution, delivery or performance by the
Delaware Trustee of this Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware and is a Person that satisfies for
the Trust Section 3807(a) of the Business Trust Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01 Notices
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Regular
Trustees on behalf of the Trust may give notice of to the Holders of the
Securities):
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<PAGE> 51
Centex Trust [I] [II]
2728 North Harwood Drive
Dallas, Texas 75201
Attention: _____________
Telecopy: ______________
(b) if given to the Property Trustee, at the mailing address of the
Property Trustee set forth below (or such other address as the Property Trustee
may give notice of to the Holders of the Securities):
The Chase Manhattan Bank
Global Trust Services
600 Travis Street, Suite 1150
Houston, Texas 77002
Attention: John G. Jones
Telecopy: (713) 577-5200
(c) if given to the Delaware Trustee, at the mailing address of the
Delaware Trustee set forth below (or such other address as the Delaware Trustee
may give notice of to the Holders of the Securities):
Chase Manhattan Bank USA, National Association
1201 Market Street
Wilmington, Delaware 19801
Attention: _____________
Telecopy: ______________
(d) if given to the Holder of the Common Securities, at the mailing
address of the Holder of Common Securities set forth below (or such other
address as the Holder of the Common Securities may give notice of to the Trust):
________________________
________________________
________________________
Attention: _____________
Telecopy: ______________
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
A copy of any notice to the Property Trustee or the Delaware Trustee
shall also be sent to the Trust. All notices shall be deemed to have been given,
when (i) received in person, (ii) telecopied with receipt confirmed, or (iii)
mailed by first class mail, postage prepaid, when received, except that if a
notice or other document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
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<PAGE> 52
SECTION 14.02 Undertaking for Costs
All parties to this Declaration agree, and each Holder of any
Securities by his or her acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Declaration, or in any suit against the Property
Trustee for any action taken or omitted by it as Property Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided, however, that the provisions of this
Section 14.02 shall not apply to any suit instituted by the Property Trustee, to
any suit instituted by any Holder of Preferred Securities, or group of Holders
of Preferred Securities, holding more than 10% of Outstanding Preferred
Securities, or to any suit instituted by any Holder of Preferred Securities for
the enforcement of the payment of the principal of, any premium or interest on
or any Additional Amounts with respect to the Debentures, on or after the
respective due dates expressed in such Debentures.
SECTION 14.03 Governing Law
This Declaration, the Securities and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to principles of conflict of laws.
SECTION 14.04 Headings
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.05 Partial Enforceability
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to Persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.06 Counterparts
This Declaration may contain more than one counterpart of the signature
pages and this Declaration may be executed by the affixing of the signature of
the Sponsor and each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
SECTION 14.07 Intention of the Parties
It is the intention of the parties hereto that the Trust not be
classified for United States Federal income tax purposes as an association
taxable as a corporation but that the Trust
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<PAGE> 53
be treated as a grantor trust for United States Federal income tax purposes. The
provisions of this Declaration shall be interpreted to further this intention of
the parties.
SECTION 14.08 Successors and Assigns
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 14.09 No Recourse
The Trust's obligations hereunder are intended to be the obligations of
the Trust, and no recourse for the payment of Distributions, or for any claim
upon the Securities or otherwise in respect thereof, shall be had against any
Holder of Securities or any Affiliate of a Holder of Securities, solely by
reason of such Person's being a Holder of Securities or an Affiliate of a Holder
of Securities, it being understood that the Holder of Securities, solely by
reason of being a Holder of Securities, has limited liability (in accordance
with the provisions of the Business Trust Act) for the liabilities and
obligations of the Trust. Nothing contained in this Section 14.09 shall be
construed to limit the exercise or enforcement, in accordance with the terms of
this Declaration, the Preferred Securities Guarantee and the Indenture, of the
rights and remedies against the Trust or the Sponsor.
SECTION 14.10 Agent for Service of Process
The Sponsor hereby designates CT Corporation System, having an address
at 1633 Broadway, New York, New York, as its authorized agent upon whom process
may be served in any action, suit or proceeding that may be instituted in any
State or Federal court sitting in the County of New York of the State of New
York pertaining to this Declaration or any matter arising out of or related to
this Declaration, and the Sponsor will accept the jurisdiction of such court in
such action, and waive, to the fullest extent permitted by applicable law, any
defense based upon lack of personal jurisdiction or venue or forum non
conveniens. A copy of any such process shall be sent or given to the Sponsor at
the address for notices specified in Section 14.01 hereof. The Sponsor shall
maintain the designation of such authorized agent until two years after the
dissolution of the Trust pursuant to Section 3.17 or Section 8.01.
SECTION 14.11 Payment Currency
To the fullest extent permitted by applicable law, the obligation of
the Sponsor in respect of any amount due hereunder shall, notwithstanding any
payment in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in Dollars that the party entitled
to receive such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency (after any premium and costs
of exchange) in the city of receipt on the Business Day immediately following
the day on which such party receives such payment. If the amount in Dollars that
may be so purchased for any reason falls short of the amount originally due, the
Sponsor shall pay such additional amounts, in Dollars, as may be necessary to
compensate for the shortfall. Any obligation of the Sponsor not discharged by
such additional payment shall, to the fullest extent permitted by applicable
law, be
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<PAGE> 54
due as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
50
<PAGE> 55
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
CENTEX CORPORATION,
as Sponsor
By:
------------------------------
Name:
Title:
,
--------------------------------
as initial Holder of Common
Securities
By:
------------------------------
Name:
Title:
---------------------------------
[Name],
as Regular Trustee
---------------------------------
[Name],
as Regular Trustee
---------------------------------
[Name],
as Regular Trustee
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<PAGE> 56
THE CHASE MANHATTAN BANK
as Property Trustee
By:
------------------------------
Name:
Title:
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Delaware Trustee
By:
------------------------------
Name:
Title:
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<PAGE> 57
EXHIBIT A
CERTIFICATE OF TRUST
OF
CENTEX TRUST [I] [II]
THIS CERTIFICATE OF TRUST of Centex Trust [I] [II] (the "Trust"), dated
as of November 9, 2000, is being duly executed and filed by the undersigned, as
trustees, with the Secretary of State of the State of Delaware to form a
business trust under the Delaware Business Trust Act (12 Del. Code Section 3801
et seq.).
1. Name. The name of the business trust being formed hereby is
"Centex Trust [I] [II]."
2. Delaware Trustee. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware are
Chase Manhattan Bank USA, National Association, 1201 Market Street, Wilmington,
Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
at the time of its filing with the Secretary of State of the State of Delaware.
4. Counterparts. This Certificate of Trust may be executed in one
or more counterparts.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust at the time of filing this Certificate of Trust, have executed this
Certificate of Trust as of the date first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Delaware Trustee
By:
----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
----------------------------------------
Name:
Title:
Lawrence Angelilli,
as Regular Trustee
-------------------------------------------
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EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.01(b) of the Amended and Restated Declaration of
Trust of Centex Trust [I] [II] dated as of ____________, ____ (as amended from
time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. Designation and Number. _________ (_______) Preferred Securities of
the Trust with an aggregate liquidation amount at any time outstanding with
respect to the assets of the Trust of _________________ Dollars ($___________)
[(including up to ____________ (__________) Preferred Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
_______________ ($_________) issuable upon exercise of the over-allotment option
set forth in the Underwriting Agreement)], and each with a liquidation amount
with respect to the assets of the Trust of $______ per Preferred Security, are
hereby designated as "____% [[Convertible] Trust Preferred Securities]." The
Preferred Security Certificates evidencing the Preferred Securities shall be
substantially in the form attached hereto as Annex I, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of any stock exchange or automated
quotation system on which the Preferred Securities are then listed, traded or
quoted. In connection with the issuance and sale of the Preferred Securities and
the Common Securities, the Trust will purchase as trust assets Debentures of
Centex having an aggregate principal amount equal to the aggregate liquidation
amount of the Preferred Securities and the Common Securities so issued and
bearing interest at an annual rate equal to the annual Distribution rate on the
Preferred Securities and the Common Securities and having payment and redemption
provisions which correspond to the payment and redemption provisions of the
Preferred Securities and the Common Securities.
2. Distributions and Additional Amounts. (a) Distributions payable on
each Preferred Security will be fixed at a rate per annum of ____% (the "Coupon
Rate") of the stated liquidation amount of $______ per Preferred Security, such
rate being the rate of interest payable on the Debentures to be held by the
Property Trustee. Distributions that are not paid when such distributions are
payable (or would be payable but for the deferral of such payment pursuant to
Section 2.1(b) below or a default by Centex in the payment of interest on the
Debentures) will accumulate additional distributions thereon at the Coupon Rate
per annum (to the extent permitted by applicable law), compounded [quarterly]
[semi-annually]. The term "Distributions" as used herein means such periodic
cash distributions and any such additional distributions payable unless
otherwise stated. A Distribution will be made by the Property Trustee only to
the extent that interest payments are made in respect of the Debentures held by
the Property Trustee and to the extent the Trust has funds on hand legally
available therefor. The amount of Distributions payable for any period will be
computed for any full [quarterly] [semi-annual] Distribution period on the basis
of a 360-day year of twelve 30-day months, and for any period shorter than a
full [quarterly] [semi-annual] Distribution period for which Distributions are
computed, Distributions will be computed on the basis of the actual number of
days elapsed per [90-day quarter] [180-day semi-annual period].
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<PAGE> 59
(b) Distributions on the Preferred Securities will accumulate from
________ ___, _____ and will be payable [quarterly] [semi-annually] in arrears,
on [________ ___, ________ ___,] ________ ___ and ________ ___ of each year,
commencing on ________ ___, ____, except as otherwise described below, but only
if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures, Centex
has the right under the Indenture for the Debentures to defer payments of
interest on the Debentures by extending the interest payment period of the
Debentures at any time and from time to time for a period not exceeding [20]
[10] consecutive [quarterly] [semi-annual] interest periods (each, an "Extension
Period"), during which Extension Period no interest shall be due and payable on
the Debentures. As a consequence of such deferral, Distributions shall also be
deferred. Despite such deferral, Distributions will continue to accumulate on
the Preferred Securities with additional distributions thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at the Coupon Rate compounded
[quarterly] [semi-annually] during any such Extension Period. No Extension
Period shall extend beyond the stated maturity of the Debentures. Prior to the
termination of any such Extension Period, Centex may further extend such
Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed [20] [10] consecutive
[quarterly] [semi-annual] interest periods or extend beyond the stated maturity
of the Debentures. Upon the termination of any Extension Period and the payment
of all amounts then due, Centex may commence a new Extension Period, subject to
the above requirements. On the Distribution payment date at the end of an
Extension Period, payments of accumulated Distributions (including any
Additional Amounts) will be payable to Holders of Preferred Securities as they
appear on the books and records of the Trust (regardless of who the Holders may
have been on other dates during the Extension Period) on the record date for
such Distribution payment date.
(c) Distributions and Additional Amounts on the Preferred Securities
will be payable promptly by the Property Trustee (or other Paying Agent) upon
receipt of immediately available funds to the Holders thereof as they appear on
the books and records of the Trust on the relevant record dates. While the
Preferred Securities remain in book-entry only form, the relevant record dates
shall be the Business Day next preceding the relevant Distribution payment date,
and if the Preferred Securities are no longer in book-entry only form, the
relevant record dates will be the close of business on the [________ ___,
________ ___,] ________ ___ and ________ ___ next preceding the relevant
Distribution payment date, which record and payment dates correspond to the
record and interest payment dates on the Debentures. Distributions and
Additional Amounts payable on any Preferred Securities that are not punctually
paid on any Distribution payment date as a result of Centex's having failed to
make the corresponding payment on the Debentures will forthwith cease to be
payable to the Person in whose name such Preferred Security is registered on the
relevant record date, and such defaulted payment will instead be payable to the
Person in whose name such Preferred Security is registered on the special record
date established by the Regular Trustees, which record date shall correspond to
the special record date or other specified date determined in accordance with
the Indenture; provided, however, that Distributions shall not be considered
payable on any Distribution payment date falling within an Extension Period
unless Centex has elected to make a full or partial payment of accrued interest
on the Debentures on such Distribution payment date. Subject to any applicable
laws and regulations and the provisions of the Declaration, each
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payment in respect of the Preferred Securities will be made as described in
Section [9] hereof. If any date on which Distributions and Additional Amounts
are payable on the Preferred Securities is not a Business Day, then payment of
the Distribution and Additional Amounts payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date such payment was originally payable. Notwithstanding anything herein
to the contrary, the record dates and payment dates for Distributions and
Additional Amounts shall be the same as the record dates and payment dates for
the Debentures.
(d) All Distributions and Additional Amounts paid with respect to the
Preferred Securities and the Common Securities will be paid Pro Rata (as defined
below) to the Holders thereof entitled thereto. If an Event of Default has
occurred and is continuing, the Preferred Securities shall have a priority over
the Common Securities with respect to such payments.
(e) [In the event of an election by the Holder to convert its Preferred
Securities through the Conversion Agent into shares of Common Stock pursuant to
the terms of the Preferred Securities as set forth herein, no payment, allowance
or adjustment shall be made with respect to accumulated and unpaid Distributions
on or additional amounts with respect to such Preferred Securities, or be
required to be made; provided, however, that if a Preferred Security is
surrendered for conversion after the close of business on any regular record
date for payment of a Distribution and additional amounts and before the opening
of business on the corresponding Distribution payment date, then,
notwithstanding such conversion, the Distribution and additional amounts payable
on such Distribution payment date will be paid in cash to the Person in whose
name the Preferred Security is registered at the close of business on such
record date, and (other than a Preferred Security or a portion of a Preferred
Security called for redemption on a redemption date occurring after such record
date and on or prior to such Distribution payment date) when so surrendered for
conversion, the Preferred Security must be accompanied by payment of an amount
equal to the Distribution and additional amounts payable on such Distribution
payment date.
(f)] In the event that there is any money or other property held by or
for the Trust that is not accounted for under the Declaration, such money or
property shall be distributed Pro Rata among the Holders of the Preferred
Securities and the Common Securities.
3. Liquidation Distribution Upon Dissolution. (a) In the event of any
voluntary or involuntary dissolution of the Trust other than as contemplated by
Section 8.01(a) or (f) of the Declaration, the Holders of the Preferred
Securities and the Common Securities will be entitled to receive Pro Rata solely
out of the assets of the Trust legally available for distribution to Holders of
Preferred Securities and Common Securities after satisfaction of liabilities to
the creditors of the Trust, an amount equal to the aggregate of the stated
liquidation amount of $______ per Preferred Security and Common Security plus
accumulated and unpaid Distributions thereon and any Additional Amounts with
respect thereto to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such dissolution and after
satisfaction of liabilities to the creditors of the Trust, Debentures, in an
aggregate
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principal amount equal to the aggregate stated liquidation amount of such
Preferred Securities and the Common Securities and bearing accrued and unpaid
interest and Additional Amounts in an amount equal to the accumulated and unpaid
Distributions on and any Additional Amounts with respect to such Preferred
Securities and the Common Securities, shall be distributed Pro Rata to the
Holders of the Preferred Securities and the Common Securities in exchange for
such Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets on hand legally available
to pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and the Common Securities
shall be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution Pro Rata with Holders of Preferred
Securities, except that if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities with
respect to such Liquidation Distribution.
(b) The Holder of the Common Securities shall have the right to direct
the Property Trustee in writing at any time to dissolve the Trust and to
distribute Debentures to Holders in exchange for Securities (which direction is
optional and wholly within the discretion of the Holder of the Common
Securities). Upon the receipt of any such written direction, the Property
Trustee shall promptly (i) distribute Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of the Preferred
Securities and the Common Securities held by each Holder, which Debentures bear
accrued and unpaid interest and Additional Amounts in an amount equal to the
accumulated and unpaid Distributions on and any Additional Amounts with respect
to the Preferred Securities and the Common Securities of such Holder, in
exchange for the Preferred Securities and Common Securities of such Holder and
(ii) dissolve the Trust.
(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Preferred Securities will no longer be deemed
to be outstanding and may be canceled by the Regular Trustees; (ii) the Clearing
Agency, or its nominee, as the Holder of the Preferred Securities, will receive
a registered global certificate or certificates representing the Debentures to
be delivered upon such distribution; and (iii) Certificates representing
Preferred Securities not held by the Clearing Agency or its nominee will be
deemed to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and bearing accrued
and unpaid interest and Additional Amounts equal to accumulated and unpaid
Distributions on and any Additional Amounts with respect to, such Preferred
Securities until such Certificates are presented to Centex or its agent for
cancellation and Debentures are issued in lieu thereof. Debentures distributed
to holders of Certificates representing Preferred Securities not held by the
Clearing Agency or its nominee shall not be issued in the form of a global
certificate or certificates representing such Debentures or any other form
intended to facilitate book-entry trading in beneficial interests in such
Debentures.
[(d) If Debentures are distributed to Holders of the Preferred
Securities, Centex, pursuant to the terms of the Indenture, will use its
reasonable efforts to have the
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Debentures listed on the New York Stock Exchange or on such other exchange or
automated quotation system as the Preferred Securities were listed immediately
prior to the distribution of the Debentures.]
4. Redemption of Debentures. The Preferred Securities may be redeemed
only if Debentures having an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities and the Common Securities are
repaid or redeemed as set forth below:
(a) Upon the repayment of the Debentures, in whole or in part, whether
at maturity, upon redemption at any time or from time to time [on or after
_________, ____], the proceeds of such repayment will be promptly applied
to redeem Pro Rata Preferred Securities and Common Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed, upon not less than 30 nor more than 60
days' notice, at a redemption price [of $______ per Preferred Security and
Common Security plus an amount equal to accumulated and unpaid
Distributions thereon and any Additional Amounts with respect thereto to,
but excluding, the date of redemption, payable in cash (the "Redemption
Price").] [equal to (i) in the case of the optional redemption of the
Debentures upon the occurrence and continuation of a Special Event (as
defined below), the Special Event Redemption Price (as defined below) or
(ii) in the case of the optional redemption of the Debentures other than as
contemplated in clause (i) above, the Optional Redemption Price (as defined
below). The Special Event Redemption Price and the Optional Redemption
Price are referred to collectively as the "Redemption Price."] The date of
any such repayment or redemption of Preferred Securities and Common
Securities shall be established to coincide with the repayment or
redemption date of the Debentures.
["Special Event Redemption Price" shall be equal to the greater of (i)
the liquidation amount of the Preferred Securities to be redeemed and (ii)
the Make-Whole Amount, in each case plus an amount equal to accumulated and
unpaid Distributions thereon and any Additional Amounts with respect
thereto to, but excluding, the date of redemption.
"Optional Redemption Price" shall be equal to the greater of (i) the
liquidation amount of the Preferred Securities to be redeemed and (ii) the
Make-Whole Amount, in each case plus an amount equal to accumulated and
unpaid Distributions thereon and any Additional Amounts with respect
thereto to, but excluding, the date of redemption.
"Make-Whole Amount" shall be equal to, as determined by the Quotation
Agent, the sum of the present values, calculated as of the redemption date,
of (i) each interest payment that would have been payable on the Debentures
or portions thereof being redeemed, if such Debentures or portions thereof
were not redeemed, on each scheduled interest payment date occurring after
the redemption date (excluding any accrued interest for the period prior to
the redemption date) and (ii) the principal amount of such Debentures or
portions thereof that would have been payable, if such Debentures or
portions thereof were not redeemed, at the scheduled maturity of such
Debentures or portions thereof being redeemed (the "Remaining Life"), in
each case discounted to the
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redemption date on a semiannual basis (assuming a 360-day year consisting
of 30-day months) at the Adjusted Treasury Rate plus ___ basis points for
the purpose of calculating the Optional Redemption Price and ___ basis
points for the purpose of calculating the Special Event Redemption Price.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the
most recently published statistical release designated "H.15 (519)" or any
successor publication which is published weekly by the Federal Reserve
Board and which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity date corresponding to the
Remaining Life (if no maturity date is within three months before or after
the Remaining Life, yields for the two published maturity dates most
closely corresponding to the Remaining Life shall be interpolated and the
Adjusted Treasury Rate shall be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month) or (ii) if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price for such redemption date, in each case
calculated on the third Business Day preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity date comparable to the
Remaining Life that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the Remaining Life. If
no United States Treasury security has a maturity date which is within a
period from three months before to three months after the Remaining Life,
the two most closely corresponding United States Treasury securities shall
be used as the Comparable Treasury Issue, and the Adjusted Treasury Rate
shall be interpolated or extrapolated on a straight-line basis, rounding to
the nearest month using such securities.
"Quotation Agent" means ________________ and its successors; provided,
however, that if the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), Centex
shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means: (i) the Quotation Agent and (ii)
any other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with Centex.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of five Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the Debenture Trustee obtains fewer
than five such Reference Treasury Dealer Quotations, the average of all
such quotations.
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"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Debenture Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Debenture Trustee by such
Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such redemption date.]
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Preferred Securities will be redeemed
as described in Section 4(e)(ii) below, and the Common Securities will be
redeemed Pro Rata with the Preferred Securities, except that if an Event of
Default has occurred and is continuing, the Preferred Securities will have
a priority over the Common Securities with respect to payment of the
Redemption Price. If a partial redemption would result in the delisting of
the Preferred Securities by any national securities exchange or other
organization on which the Preferred Securities are then listed or traded,
Centex pursuant to the Indenture will redeem Debentures only in whole and,
as a result, the Trust may redeem the Preferred Securities only in whole.
(c) If, at any time, a Tax Event or an Investment Company Event (each
as hereinafter defined, and each a "Special Event") shall occur and be
continuing, Centex shall have the right at any time [prior to ________ ___,
____], upon not less than 30 nor more than 60 days' notice, to redeem the
Debentures in whole [or][but not] in part for cash at the [Special Event]
Redemption Price within 90 days following the occurrence of such Special
Event, and promptly following such redemption, Preferred Securities and
Common Securities with an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so redeemed will be redeemed
by the Trust at the [Special Event] Redemption Price on a Pro Rata basis.
The Common Securities will be redeemed Pro Rata with the Preferred
Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities will have a priority over the Common
Securities with respect to payment of the [Special Event] Redemption Price.
"Tax Event" means that the Sponsor and the Regular Trustees shall have
received an Opinion of Counsel, who shall not be an employee of the Sponsor
and who shall be experienced in such matters, to the effect that as a
result of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any rules or regulations thereunder)
of the United States or any political subdivision or taxing authority
thereof or therein, (b) any amendment to, or change in, an interpretation
or application of any such laws, rules or regulations by any legislative
body, court, governmental agency or regulatory authority (including the
enactment of any legislation or the publication of any judicial decision or
regulatory determination), (c) any interpretation or pronouncement by any
legislative body, court, governmental agency or regulatory authority that
provides for a position with respect to such laws, rules or regulations
that differs from its previous position or a theretofore commonly accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced
or which action is taken, in each case on or after ________ ___, ____,
there is more than an insubstantial risk that (i) the
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Trust is, or will be within 90 days of the date thereof, subject to United
States Federal income tax with respect to income accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of taxes, duties or other
governmental charges or (iii) interest payable by Centex to the Trust on
the Debentures is not, or within 90 days of the date thereof will not be,
deductible by Centex for United States Federal income tax purposes.
"Investment Company Event" means that the Sponsor and the Regular
Trustees shall have received an Opinion of Counsel, who shall not be an
employee of the Sponsor and who shall be experienced in practice under the
Investment Company Act, that, as a result of the occurrence of a change in
law or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in Investment Company Act Law"), there is
more than an insubstantial risk that the Trust is or will be considered an
Investment Company that is required to be registered under the Investment
Company Act, which Change in Investment Company Act Law becomes effective
on or after ________ ___, ____.
(d) The Trust may not redeem fewer than all the outstanding Preferred
Securities unless all accumulated and unpaid Distributions and Additional
Amounts have been paid on all Preferred Securities for all [quarterly]
[semi-annual] Distribution periods terminating on or prior to the date of
redemption.
(e) (i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Preferred Securities and the Common
Securities (a "Redemption/Distribution Notice") will be given by the
Regular Trustees on behalf of the Trust by mail to each Holder of Preferred
Securities and Common Securities to be redeemed or exchanged not less than
30 nor more than 60 days prior to the date fixed for redemption or exchange
thereof. For purposes of the calculation of the date of redemption or
exchange and the dates on which notices are given pursuant to this Section
4(e)(i), a Redemption/Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail, postage prepaid,
to Holders of Preferred Securities and Common Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of
Preferred Securities and Common Securities at the address of each such
Holder appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption or
exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Preferred
Securities are to be redeemed, the Preferred Securities to be redeemed will
be redeemed Pro Rata from each Holder of Preferred Securities, it being
understood that, in respect of Preferred Securities registered in the name
of and held of record by DTC (or successor Clearing Agency) or any other
nominee, the Preferred Securities will be redeemed from, and the
distribution of the proceeds of such redemption will be made to, DTC (or
successor Clearing Agency) or other nominee.
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(iii) Subject to Section [9] hereof, if the Trust gives a
Redemption/Distribution Notice in respect of a redemption of Preferred
Securities as provided in this Section 4, then (A) while the Preferred
Securities are in book-entry only form, with respect to the Preferred
Securities, by 12:00 noon, New York City time, on the redemption date,
provided that Centex has paid the Property Trustee, in immediately
available funds, a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Property Trustee will deposit
irrevocably with DTC (or successor Clearing Agency) funds sufficient to pay
the applicable Redemption Price with respect to the Preferred Securities
and will give DTC (or successor Clearing Agency) irrevocable instructions
and authority to pay the Redemption Price to the Holders of the Preferred
Securities and (B) if the Preferred Securities are issued in definitive
form, with respect to the Preferred Securities and provided that Centex has
paid the Property Trustee, in immediately available funds, a sufficient
amount of cash in connection with the related redemption or maturity of the
Debentures, the Property Trustee will pay the relevant Redemption Price to
the Holders of such Preferred Securities by check mailed to the address of
the relevant Holder appearing on the books and records of the Trust on the
redemption date or by wire transfer of immediately available funds to an
account designated by such Holder. If a Redemption/Distribution Notice
shall have been given and funds deposited as required, if applicable, then
immediately prior to the close of business on the redemption date,
Distributions will cease to accumulate on the Preferred Securities called
for redemption, such Preferred Securities will no longer be deemed to be
outstanding and all rights of Holders of such Preferred Securities so
called for redemption will cease, except the right of the Holders of such
Preferred Securities to receive the Redemption Price, but without interest
on such Redemption Price. Neither the Trustees nor the Trust shall be
required to register or cause to be registered the transfer of any
Preferred Securities which have been so called for redemption. If any date
fixed for redemption of Preferred Securities is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business
Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If payment of the
Redemption Price in respect of Preferred Securities is improperly withheld
or refused and not paid either by the Property Trustee or by Centex
pursuant to the Preferred Securities Guarantee, Distributions on such
Preferred Securities will continue to accumulate, from the original
redemption date to the date of payment, in which case the actual payment
date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to DTC or its nominee (or any successor
Clearing Agency or its nominee) if the Global Certificates have been issued
or, if Definitive Preferred Security Certificates have been issued, to the
Holders of the Preferred Securities.
(v) Subject to the foregoing and applicable law (including, without
limitation, United States Federal securities laws), Centex or any of its
Affiliates may at any time and
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from time to time purchase outstanding Preferred Securities by tender, in
the open market or by private agreement.
[5. CONVERSION RIGHTS. The Holders of Preferred Securities shall have
the right at any time prior to the close of business on ___________, ____ or, in
the case of Preferred Securities called for redemption, prior to the close of
business on the Business Day immediately prior to the redemption date, at their
option, to cause the Conversion Agent to convert Preferred Securities, on behalf
of the converting Holders, into shares of Common Stock in the manner described
herein on and subject to the following terms and conditions:
(a) The Preferred Securities will be convertible at the office of the
Conversion Agent maintained for such purpose in the Borough of Manhattan,
The City of New York, into fully paid and nonassessable shares of Common
Stock pursuant to the Holder's direction to the Conversion Agent to
exchange such Preferred Securities for a portion of the Debentures
theretofore held by the Trust on the basis of one Preferred Security per
$______ principal amount of Debentures, and immediately convert such amount
of Debentures into fully paid and nonassessable shares of Common Stock at
an initial rate of __ shares of Common Stock per $_______ principal amount
of Debentures (which is equivalent to a conversion price of $___ per share
of Common Stock, subject to certain adjustments set forth in Sections ___
and ___ of the Supplemental Indenture (as so adjusted, the "Conversion
Price")).
(b) In order to convert Preferred Securities into Common Stock, the
Holder shall submit to the Conversion Agent at the office referred to above
an irrevocable request to convert Preferred Securities on behalf of such
Holder (the "Conversion Request"), together, if the Preferred Securities
are in certificated form, with such Preferred Security Certificates. The
Conversion Request shall (i) set forth the number of Preferred Securities
to be converted and the name or names, if other than the Holder, in which
the shares of Common Stock should be issued and (ii) direct the Conversion
Agent (a) to exchange such Preferred Securities for a portion of the
Debentures held by the Trust (at the rate of exchange specified in the
preceding paragraph) and (b) to immediately convert such Debentures on
behalf of such Holder into shares of Common Stock, subject to certain
adjustments set forth in the Supplemental Indenture (at the conversion rate
specified in the preceding paragraph). The Conversion Agent shall notify
the Trust of the Holder's election to exchange Preferred Securities for a
portion of the Debentures held by the Trust and the Trust shall, upon
receipt of such notice, deliver to the Conversion Agent the appropriate
principal amount of Debentures for exchange in accordance with this
Section. The Conversion Agent shall thereupon notify the Sponsor of the
Holder's election to convert such Debentures into shares of Common Stock.
If a Preferred Security is surrendered for conversion after the close of
business on any regular record date for payment of a Distribution and
before the opening of business on the corresponding Distribution payment
date, then, notwithstanding such conversion, the Distribution payable on
such Distribution payment date will be paid in cash to the Person in whose
name the Preferred Security is registered at the close of business on such
record date, and (other than a Preferred Security or a portion of a
Preferred Security called for redemption on a redemption date occurring
after such record date and on or prior to such Distribution payment date)
when so surrendered for conversion, the Preferred Security
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must be accompanied by payment of an amount equal to the Distribution
payable on such Distribution payment date. Except as provided above,
neither the Trust nor the Sponsor will make, or be required to make, any
payment, allowance or adjustment upon any conversion on account of any
accumulated and unpaid Distributions accumulated on the Preferred
Securities surrendered for conversion, or on account of any accumulated and
unpaid dividends on the shares of Common Stock issued upon such conversion,
and the delivery of shares of Common Stock upon conversion of the Preferred
Securities shall be deemed to constitute full payment for all accumulated
and unpaid Distributions on the Preferred Securities. Preferred Securities
shall be deemed to have been converted immediately prior to the close of
business on the day on which a Notice of Conversion relating to such
Preferred Securities is received by the Trust in accordance with the
foregoing provision (the "Conversion Date"). The Person or Persons entitled
to receive shares of Common Stock issuable upon conversion of the
Debentures shall be treated for all purposes as the record holder or
holders of such shares of Common Stock at such time. As promptly as
practicable on or after the Conversion Date, the Sponsor shall issue the
number of full shares of Common Stock issuable upon such conversion to, and
shall deliver at the office of the Conversion Agent the cash payment, if
any, in lieu of any fraction of any Share for the account of, the Person or
Persons entitled to receive the same, unless otherwise directed by the
Holder in the Notice of Conversion. The Conversion Agent shall distribute
such cash payment, if any, to such Person or Persons.
(c) Each Holder of a Preferred Security by his acceptance thereof
appoints The Chase Manhattan Bank, as the "Conversion Agent" for the
purpose of effecting the conversion of Preferred Securities in accordance
with this Section. In effecting the conversion and transactions described
in this Section, the Conversion Agent shall be acting as agent of the
Holders of Preferred Securities directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange
Preferred Securities from time to time for Debentures held by the Trust in
connection with the conversion of such Preferred Securities in accordance
with this Section and (ii) to convert all or a portion of the Debentures
into shares of Common Stock and thereupon to deliver such shares of Common
Stock in accordance with the provisions of this Section and to deliver to
the Trust a new Debenture or Debentures for any resulting unconverted
principal amount.
(d) No fractional shares of Common Stock will be issued as a result of
conversion, but in lieu thereof, such fractional interest will be paid by
the Sponsor in cash (based upon the Closing Price (as defined in the
Indenture) of shares of Common Stock on the date such Preferred Securities
are surrendered for conversion to the Trust) to the Conversion Agent, which
in turn will make such payment to the Holder or Holders of Preferred
Securities so converted, or, if such day is not a Trading Day (as defined
in the Indenture), on the next Trading Day.
(e) The Sponsor shall at all times reserve and keep available out of
its authorized and unissued Common Stock, solely for issuance upon the
conversion of the Debentures, free from any preemptive or other similar
rights, such number of shares of Common Stock as shall from time to time be
issuable upon the conversion of all the Debentures then outstanding.
Notwithstanding the foregoing, the Sponsor shall be
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entitled to deliver upon conversion of Debentures, shares of Common Stock
reacquired and held in the treasury of the Sponsor (in lieu of the issuance
of authorized and unissued shares of Common Stock), so long as any such
treasury shares are free and clear of all liens, charges, security
interests or encumbrances. Any shares of Common Stock issued upon
conversion of the Debentures shall be duly authorized, validly issued and
fully paid and nonassessable. The Trust shall deliver the shares of Common
Stock received upon conversion of the Debentures to the converting Holder
of Preferred Securities free and clear of all liens, charges, security
interests and encumbrances, except for United States withholding taxes.
Each of the Sponsor and the Trust shall prepare and shall use its best
efforts to obtain and keep in force such governmental or regulatory permits
or other authorizations as may be required by law, and shall comply with
all applicable requirements as to registration or qualification of shares
of Common Stock (and all requirements to list shares of Common Stock
issuable upon conversion of Debentures that are at the time applicable), in
order to enable the Sponsor to lawfully issue shares of Common Stock to the
Trust upon conversion of the Debentures and the Trust to lawfully deliver
shares of Common Stock to each Holder of Preferred Securities upon
conversion of the Preferred Securities.
(f) The Sponsor will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Debentures and the delivery of the shares of Common Stock by the Trust upon
conversion of the Preferred Securities. The Sponsor shall not, however, be
required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of shares of Common Stock in a name
other than that in which the Preferred Securities so converted were
registered, and no such issue or delivery shall be made unless and until
the Person requesting such issue has paid to the Trust the amount of any
such tax, or has established to the satisfaction of the Trust that such tax
has been paid.
(g) Nothing in the preceding paragraph (f) shall limit the requirement
of the Trust to withhold taxes pursuant to the terms of the Preferred
Securities or set forth in this Exhibit B to the Declaration or to the
Declaration itself or otherwise require the Property Trustee or the Trust
to pay any amounts on account of such withholdings.]
6. VOTING RIGHTS. (a) Except as provided under paragraph [6](b) below
and as otherwise required by law and the Declaration, the Holders of the
Preferred Securities will have no voting rights.
(b) If any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration, other than as described in
Section 12.01(b) of the Declaration, or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than as described in Section 8.01
of the Declaration, then the Holders of outstanding Securities will be entitled
to vote on such amendment or proposal as a single class and such amendment or
proposal shall not be effective except with the approval of the Holders of
Securities of at least a Majority of Outstanding Securities, voting together as
a single class; provided, however, that (A) if any amendment or proposal
referred to in clause (i) above would adversely affect only the Preferred
Securities or
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the Common Securities, then only the affected class of Securities will be
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of at least a Majority of
Outstanding Securities of such class and (B) amendments to the Declaration shall
be subject to such further requirements as are set forth in Sections 12.01 and
12.02 of the Declaration.
In the event the consent of the Property Trustee, as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination. The Property
Trustee shall vote with respect to such amendment, modification or termination
as directed by a Majority of Outstanding Securities voting together as a single
class; provided, however, that where such amendment, modification or termination
of the Indenture requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal amount
of the Debentures or (2) each holder of Debentures, the Property Trustee may
only vote with respect to that amendment, modification or termination as
directed by, in the case of clause (1) above, the vote of Holders of Securities
representing such specified percentage of the aggregate liquidation amount of
the Securities, or, in the case of clause (2) above, each Holder of Securities;
and provided, further, that the Property Trustee shall be under no obligation to
take any action in accordance with the directions of the Holders of Securities
unless the Property Trustee shall have received, at the expense of the Sponsor,
an Opinion of Counsel experienced in such matters to the effect that the Trust
will not be classified for United States Federal income tax purposes as other
than a grantor trust on account of such action.
So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee of the Indenture (the
"Debenture Trustee"), or exercising any trust or power conferred on the
Debenture Trustee with respect to the Debentures, (ii) waive any past default
that is waivable under Section 6.06 of the Indenture or (iii) exercise any right
to rescind or annul a declaration of acceleration of the maturity of the
principal of the Debentures, without, in each case, obtaining the prior approval
of the Holders of a Majority of Outstanding Preferred Securities and Common
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities except by
subsequent vote of such Holders. The Property Trustee shall notify each Holder
of Preferred Securities of any notice of default with respect to the Debentures.
If an Event of Default has occurred and is continuing, then the Holders
of a Majority of Outstanding Preferred Securities will have the right, subject
to Section 3.12(c)(iv) of the Declaration, to direct the time, method and place
of conducting any proceeding for any remedy available to the Property Trustee or
to direct the exercise of any trust or power conferred upon the Property Trustee
under the Declaration, including the right to direct the Property Trustee to
exercise the remedies available to it as a holder of the Debentures. If the
Property Trustee fails to enforce its rights under the Debentures, a Holder of
Preferred Securities may, to the fullest extent permitted by law, after a period
of 30 days has elapsed since such Holder's written request to the Property
Trustee to enforce such rights, institute a legal proceeding directly against
the Sponsor to enforce the Property Trustee's rights under the Debentures
without first instituting any legal proceeding against the Property Trustee or
any other Person; provided that,
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if an Event of Default has occurred and is continuing and such event is
attributed to the failure of the Sponsor to pay principal of, any premium or
interest on or any Additional Amounts with respect to the Debentures on the date
such amounts are otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of such amounts on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such Holder (a "Holder Direct Action") on or
after the respective due date specified in the Debentures. In connection with
such Holder Direct Action, the Sponsor will be subrogated to the rights of such
Holder of Preferred Securities to the extent of any payment made by the Sponsor
to such Holders of Preferred Securities in such Holder Direct Action. Except as
provided in the preceding sentences, the Holders of Preferred Securities will
not be able to exercise directly any other remedy available to the Holders of
the Debentures.
A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities will constitute a
waiver of the corresponding Event of Default under the Declaration in respect of
the Securities.
Any required approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities or pursuant
to written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Preferred Securities are entitled to vote to be mailed to each
Holder of record of Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote and (iii) instructions for the delivery of proxies. Any action
that may be taken at a meeting of the Holders of Securities may be taken without
a meeting and without prior notice if a consent in writing setting forth the
action so taken is signed by Holders of Securities owning not less than the
minimum aggregate liquidation amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of Securities
having a right to vote thereon were present and voting.
No vote or consent of the Holders of Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration or Section 3 of
this Exhibit B.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities at such time that are owned by Centex or by any Affiliate
of Centex shall not be entitled to vote or consent and shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
Holders of the Preferred Securities have no rights to increase or
decrease the number of Trustees or to appoint, remove or replace a Trustee,
which voting rights are vested exclusively in the Holders of the Common
Securities.
7. PRO RATA TREATMENT. A reference in these terms of the Preferred
Securities to any payment, Distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by
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the relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default has
occurred and is continuing, in which case any funds available to make such
payment shall be paid first to each Holder of the Preferred Securities pro rata
according to the aggregate liquidation amount of Preferred Securities held by
the relevant Holder relative to the aggregate liquidation amount of all
Preferred Securities outstanding, and only after satisfaction of all amounts
owed to the Holders of the Preferred Securities, to each Holder of Common
Securities pro rata according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate liquidation
amount of all Common Securities outstanding.
8. RANKING. The Preferred Securities rank pari passu and payment
thereon will be made Pro Rata with the Common Securities, except that when an
Event of Default occurs and is continuing, the rights of Holders of Preferred
Securities to payment in respect of Distributions and payments upon liquidation,
redemption or otherwise rank in priority to the rights of Holders of the Common
Securities.
9. TRANSFER, EXCHANGE, METHOD OF PAYMENTS. Payment of Distributions and
any Additional Amounts and payments on redemption of the Preferred Securities
will be payable, the transfer of the Preferred Securities will be registrable,
and Preferred Securities will be exchangeable for Preferred Securities of other
denominations of a like aggregate liquidation amount, at the corporate trust
office of the Property Trustee (or its Affiliate) in The City of New York;
provided that payment of Distributions and any Additional Amounts may be made at
the option of the Regular Trustees on behalf of the Trust by check mailed to the
address of the Persons entitled thereto or by wire transfer of funds to an
account designated by such Holder and that the payment on redemption of any
Preferred Security will be made only upon surrender of such Preferred Security
to the Property Trustee.
10. ACCEPTANCE OF INDENTURE AND PREFERRED SECURITIES GUARANTEE. Each
Holder of Preferred Securities, by the acceptance thereof, agrees to the
provisions of (i) the Preferred Securities Guarantee, including the
subordination provisions therein, and (ii) the Indenture and the Debentures,
including the subordination provisions of the Indenture.
11. NO PREEMPTIVE RIGHTS. The Holders of Preferred Securities shall
have no preemptive or similar rights to subscribe to any additional Preferred
Securities or Common Securities.
12. MISCELLANEOUS. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder of Preferred Securities without charge on written request to the
Trust at its principal place of business.
B-15
<PAGE> 73
Annex I
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - This
Preferred Security is a Global Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The Depository Trust
Company ("DTC") or a nominee of DTC. This Preferred Security is exchangeable for
Preferred Securities registered in the name of a person other than DTC or its
nominee only in the limited circumstances described in the Declaration and no
transfer of this Preferred Security (other than a transfer of this Preferred
Security as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized representative of
DTC (55 Water Street, New York, New York) to Centex Trust [I] [II] or its agent
for registration of transfer, exchange or payment, and any Preferred Security
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of DTC and any payment hereon is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.]
Certificate Number Number of Preferred Securities:
------------
-----------
Aggregate Liquidation Amount: $
------------
CUSIP NO.
------------
Certificate Evidencing Preferred Securities
of
Centex Trust [I] [II]
____% [[Convertible] Trust Preferred Securities]
(liquidation amount $______ per Preferred Security)
Centex Trust [I] [II], a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that _________
(the "Holder") is the registered owner of _____ (______) preferred securities of
the Trust representing preferred undivided beneficial interests in the assets of
the Trust and designated the ____% [[Convertible] Trust Preferred Securities]
(liquidation amount $______ per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
Certificate duly endorsed and in proper form for transfer. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities are set forth in, and this Certificate and the
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Declaration of
Trust of the Trust dated as of ___________, ____, as the same may be amended
from time to time (the "Declaration") including the designation of the terms of
Preferred Securities as set forth in Exhibit B thereto. The Preferred Securities
and the Common Securities issued by the Trust pursuant to the
B-16
<PAGE> 74
Declaration represent undivided beneficial interests in the assets of the Trust,
including the Debentures (as defined in the Declaration) issued by Centex
Corporation, a Nevada corporation ("Centex"), to the Trust pursuant to the
Indenture referred to in the Declaration. The Holder is entitled to the benefits
of the Guarantee Agreement of Centex dated as of __________, ____ (the
"Guarantee") to the extent provided therein. The Trust will furnish a copy of
the Declaration, the Guarantee and the Indenture to the Holder without charge
upon written request to the Trust at its principal place of business.
The Holder of this Certificate, by accepting this Certificate, is
deemed to have (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Debt (as defined in the Indenture) as and to the extent provided in
the Indenture, and (ii) agreed to the terms of the Guarantee, including that the
Guarantee is (a) subordinate and junior in right of payment to all other
[senior] liabilities of Centex and any guarantees of Centex relating to such
liabilities [, except in each case those made pari passu or subordinate by their
terms]; (b) senior to all capital stock now or hereafter issued by Centex; and
(c) pari passu with respect to obligations under other securities (other than
capital stock) Centex may issue from time to time and other guarantee agreements
which it may enter into from time to time to the extent that (x) such agreements
shall provide for comparable guarantees by Centex of payment on preferred
securities issued by other trusts, partnerships or other entities affiliated
with Centex that are financing vehicles of Centex and (y) the debentures or
other evidences of indebtedness of Centex relating to such preferred securities
are junior subordinated, unsecured indebtedness of Centex.
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
B-17
<PAGE> 75
IN WITNESS WHEREOF, Trustees of the Trust have executed this
Certificate.
CENTEX TRUST [I] [II]
By: ,as Regular Trustee
------------------------
Name:
Title: Regular Trustee
Dated:
Countersigned and Registered:
THE CHASE MANHATTAN BANK,
as Transfer Agent and Registrar
By:
--------------------------------
Authorized Signatory
B-18
<PAGE> 76
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a
rate per annum of ____% (the "Coupon Rate") of the stated liquidation amount of
$______ per Preferred Security, such rate being the rate of interest payable on
the Debentures to be held by the Property Trustee. Distributions that are not
paid when such distributions are payable (or would be payable but for the
deferral of such payment pursuant to the Declaration or a default by Centex in
the payment of interest on the Debentures) will accumulate additional
distributions thereon at the Coupon Rate per annum (to the extent permitted by
applicable law), compounded [quarterly] [semi-annually]. The term
"Distributions" as used herein means such periodic cash distributions and any
such additional distributions payable unless otherwise stated. A Distribution
will be made by the Property Trustee only to the extent that interest payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Trust has funds on hand legally available therefor. The amount of
Distributions payable for any period will be computed for any full [quarterly]
[semi-annual] Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full [quarterly] [semi-annual]
Distribution period for which Distributions are computed. Distributions will be
computed on the basis of the actual number of days elapsed per [90-day quarter]
[180-day semi-annual period].
Distributions on the Preferred Securities will accumulate from ________
___, _____ and will be payable [quarterly] [semi-annually] in arrears, on
[________ ___, ________ ___,] ________ ___ and ________ ___ of each year,
commencing on ________ ___, ____, except as otherwise described below, but only
if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures, Centex
has the right under the Indenture for the Debentures to defer payments of
interest on the Debentures by extending the interest payment period of the
Debentures at any time and from time to time for a period not exceeding [20]
[10] consecutive [quarterly] [semi-annual] interest periods (each, an "Extension
Period"), during which Extension Period no interest shall be due and payable on
the Debentures. As a consequence of such deferral, Distributions shall also be
deferred. Despite such deferral, Distributions will continue to accumulate on
the Preferred Securities with additional distributions thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at the Coupon Rate compounded
[quarterly] [semi-annually] during any such Extension Period. No Extension
Period shall extend beyond the stated maturity of the Debentures. Prior to the
termination of any such Extension Period, Centex may further extend such
Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed [20] [10] consecutive
[quarterly] [semi-annual] interest periods or extend beyond the stated maturity
of the Debentures. Upon the termination of any Extension Period and the payment
of all amounts then due, Centex may commence a new Extension Period, subject to
the above requirements. On the Distribution payment date at the end of an
Extension Period, payments of accumulated Distributions (including any
Additional Amounts) will be payable to Holders of Preferred Securities as they
appear on the books and records of the Trust (regardless of who the Holders may
have been on other dates during the Extension Period) on the record date for
such Distribution payment date.
The Preferred Securities shall be redeemable as provided in the
Declaration.
B-19
<PAGE> 77
[The Preferred Securities shall be convertible into shares of Common
Stock (as defined in the Declaration), through (i) the exchange of Preferred
Securities for a portion of the Debentures and (ii) the immediate conversion of
such Debentures into shares of Common Stock, in the manner and according to the
terms set forth in the Declaration.]
B-20
<PAGE> 78
[CONVERSION REQUEST
To: The Chase Manhattan Bank,
as Conversion Agent for Centex Trust [I] [II]
The undersigned owner of these Preferred Securities hereby irrevocably
exercises the option to convert these Preferred Securities, or the portion below
designated, into shares of Common Stock (as that term is defined in the Amended
and Restated Declaration of Trust, dated as of ______, ____ (as amended from
time to time, the "Declaration"), by _________, ________ and __________ as
Regular Trustees, Chase Manhattan Bank USA, National Association, as the
Delaware Trustee, The Chase Manhattan Bank, as the Property Trustee, Centex
Corporation, as Sponsor, _____________, as initial Holder of Common Securities,
and by the Holders, from time to time, of undivided beneficial interests in the
assets of the Trust to be issued pursuant to the Declaration) in accordance with
and subject to the terms and conditions of the Declaration. Pursuant to the
aforementioned exercise of the option to convert these Preferred Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Declaration) to (i) exchange such Preferred Securities for a portion of the
Debentures (as that term is defined in the Declaration) held by Centex Trust [I]
[II] (at the rate of exchange specified in the terms of the Preferred Securities
set forth as Exhibit B to the Declaration) and (ii) immediately convert such
Debentures on behalf of the undersigned into Common Stock (at the conversion
rate specified in the terms of the Preferred Securities set forth as Exhibit B
to the Declaration, subject to certain adjustments set forth in the Supplemental
Indenture (as that term is defined in the Declaration)).
The undersigned does also hereby direct the Conversion Agent that the
shares of Common Stock issuable and deliverable upon conversion, together with
any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares of Common Stock are to be issued in the name of a
Person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto.
B-21
<PAGE> 79
Date: _______________, _____
in whole ___ in part ___
Number of Preferred Securities to
be converted:
-----------------------
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in
which the shares of Common Stock
are to be issued, along with the
address or addresses of such Person
or Persons:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Signature (for conversion only)
Please Print or Type Name and
Address, Including Zip Code, and
Social Security or Other
Identifying Number
----------------------------------
----------------------------------
----------------------------------
Signature Guarantee:* _________
----------
(Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Conversion Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)]
B-22
<PAGE> 80
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
================================================================================
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
{Insert assignee's social security or tax identification number}
----------------------------------------------------------------
----------------------------------------------------------------
{Insert address and zip code of assignee}
and irrevocably appoints
----------------------------------------------------------------
----------------------------------------------------------------
agent to transfer
------------------------------------------------------------
this Preferred Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
------------------------------
Signature:
------------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THIS PREFERRED SECURITY CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
B-23
<PAGE> 81
EXHIBIT C
TERMS OF
COMMON SECURITIES
Pursuant to Section 7.01(b) of the Amended and Restated Declaration of
Trust of Centex Trust [I] [II] dated as of ____________, ____ (as amended from
time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. DESIGNATION AND NUMBER. _________ (_______) Common Securities of the
Trust with an aggregate liquidation amount at any time outstanding with respect
to the assets of the Trust of _________________ Dollars ($___________)
[(including up to ____________ (__________) Common Securities of the Trust with
an aggregate liquidation amount with respect to the assets of the Trust of
_______________ ($_________) issuable in connection with the exercise of the
over-allotment option set forth in the Underwriting Agreement)], and each with a
liquidation amount with respect to the assets of the Trust of $______ per Common
Security, are hereby designated as "____% [[Convertible] Trust Common
Securities]." The Common Security Certificates evidencing the Common Securities
shall be substantially in the form attached hereto as Annex I, with such changes
and additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice. In connection with the issuance and sale of the
Preferred Securities and the Common Securities, the Trust will purchase as trust
assets Debentures of Centex having an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Securities and the Common
Securities so issued and bearing interest at an annual rate equal to the annual
Distribution rate on the Preferred Securities and the Common Securities and
having payment and redemption provisions which correspond to the payment and
redemption provisions of the Preferred Securities and the Common Securities.
2. DISTRIBUTIONS AND ADDITIONAL AMOUNTS. (a) Distributions payable on
each Common Security will be fixed at a rate per annum of ____% (the "Coupon
Rate") of the stated liquidation amount of $______ per Common Security, such
rate being the rate of interest payable on the Debentures to be held by the
Property Trustee. Distributions that are not paid when such distributions are
payable (or would be payable but for the deferral of such payment pursuant to
Section 2.1(b) below or a default by Centex in the payment of interest on the
Debentures) will accumulate additional distributions thereon at the Coupon Rate
per annum (to the extent permitted by applicable law), compounded [quarterly]
[semi-annually]. The term "Distributions" as used herein means such periodic
cash distributions and any such additional distributions payable unless
otherwise stated. A Distribution will be made by the Property Trustee only to
the extent that interest payments are made in respect of the Debentures held by
the Property Trustee and to the extent the Trust has funds on hand legally
available therefor. The amount of Distributions payable for any period will be
computed for any full [quarterly] [semi-annual] Distribution period on the basis
of a 360-day year of twelve 30-day months, and for any period shorter than a
full [quarterly] [semi-annual] Distribution period for which Distributions are
computed, Distributions will be computed on the basis of the actual number of
days elapsed per [90-day quarter] [180-day semi-annual period].
C-1
<PAGE> 82
(b) Distributions on the Common Securities will accumulate from
________ ___, _____ and will be payable [quarterly] [semi-annually] in arrears,
on [________ ___, ________ ___,] ________ ___ and ________ ___ of each year,
commencing on ________ ___, ____, except as otherwise described below, but only
if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures, Centex
has the right under the Indenture for the Debentures to defer payments of
interest on the Debentures by extending the interest payment period of the
Debentures at any time and from time to time for a period not exceeding [20]
[10] consecutive [quarterly] [semi-annual] interest periods (each, an "Extension
Period"), during which Extension Period no interest shall be due and payable on
the Debentures. As a consequence of such deferral, Distributions shall also be
deferred. Despite such deferral, Distributions will continue to accumulate on
the Common Securities with additional distributions thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at the Coupon Rate compounded
[quarterly] [semi-annually] during any such Extension Period. No Extension
Period shall extend beyond the stated maturity of the Debentures. Prior to the
termination of any such Extension Period, Centex may further extend such
Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed [20] [10] consecutive
[quarterly] [semi-annual] interest periods or extend beyond the stated maturity
of the Debentures. Upon the termination of any Extension Period and the payment
of all amounts then due, Centex may commence a new Extension Period, subject to
the above requirements. On the Distribution payment date at the end of an
Extension Period, payments of accumulated Distributions (including any
Additional Amounts) will be payable to Holders of Common Securities as they
appear on the books and records of the Trust (regardless of who the Holders may
have been on other dates during the Extension Period) on the record date for
such Distribution payment date.
(c) Distributions and Additional Amounts on the Common Securities will
be payable promptly by the Property Trustee (or other Paying Agent) upon receipt
of immediately available funds to the Holders thereof as they appear on the
books and records of the Trust on the relevant record dates. While the Preferred
Securities remain in book-entry only form, the relevant record dates for the
Common Securities shall be the Business Day next preceding the relevant
Distribution payment date, and if the Preferred Securities are no longer in
book-entry only form, the relevant record dates for the Common Securities will
be the close of business on the [________ ___, ________ ___,] ________ ___ and
________ ___ next preceding the relevant Distribution payment date, which record
and payment dates correspond to the record and interest payment dates on the
Debentures. Distributions and Additional Amounts payable on any Common
Securities that are not punctually paid on any Distribution payment date as a
result of Centex's having failed to make the corresponding payment on the
Debentures will forthwith cease to be payable to the Person in whose name such
Common Security is registered on the relevant record date, and such defaulted
payment will instead be payable to the Person in whose name such Common Security
is registered on the special record date established by the Regular Trustees,
which record date shall correspond to the special record date or other specified
date determined in accordance with the Indenture; provided, however, that
Distributions shall not be considered payable on any Distribution payment date
falling within an Extension Period unless Centex has elected to make a full or
partial payment of accrued interest on the Debentures on such Distribution
payment date. Subject to any applicable laws and regulations and the
C-2
<PAGE> 83
provisions of the Declaration, each payment in respect of the Common Securities
will be made as described in Section [9] hereof. If any date on which
Distributions and Additional Amounts are payable on the Common Securities is not
a Business Day, then payment of the Distribution and Additional Amounts payable
on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on the date such payment was originally payable.
Notwithstanding anything herein to the contrary, the record dates and payment
dates for Distributions and Additional Amounts shall be the same as the record
dates and payment dates for the Debentures.
(d) All Distributions and Additional Amounts paid with respect to the
Preferred Securities and the Common Securities will be paid Pro Rata (as defined
below) to the Holders thereof entitled thereto. If an Event of Default has
occurred and is continuing, the Preferred Securities shall have a priority over
the Common Securities with respect to such payments.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for under the Declaration, such money or
property shall be distributed Pro Rata among the Holders of the Preferred
Securities and the Common Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. (a) In the event of any
voluntary or involuntary dissolution of the Trust other than as contemplated by
Section 8.01(a) or (f) of the Declaration, the Holders of the Preferred
Securities and the Common Securities will be entitled to receive Pro Rata solely
out of the assets of the Trust legally available for distribution to Holders of
Preferred Securities and Common Securities after satisfaction of liabilities to
the creditors of the Trust, an amount equal to the aggregate of the stated
liquidation amount of $______ per Preferred Security and Common Security plus
accumulated and unpaid Distributions thereon and any Additional Amounts with
respect thereto to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such dissolution and after
satisfaction of liabilities to the creditors of the Trust, Debentures, in an
aggregate principal amount equal to the aggregate stated liquidation amount of
such Preferred Securities and the Common Securities and bearing accrued and
unpaid interest and Additional Amounts in an amount equal to the accumulated and
unpaid Distributions on and any Additional Amounts with respect to such
Preferred Securities and the Common Securities, shall be distributed Pro Rata to
the Holders of the Preferred Securities and the Common Securities in exchange
for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets on hand legally available
to pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and the Common Securities
shall be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution Pro Rata with Holders of Preferred
Securities, except
C-3
<PAGE> 84
that if an Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities with respect to such
Liquidation Distribution.
(b) The Holder of the Common Securities shall have the right to direct
the Property Trustee in writing at any time to dissolve the Trust and to
distribute Debentures to Holders in exchange for Securities (which direction is
optional and wholly within the discretion of the Holder of the Common
Securities). Upon the receipt of any such written direction, the Property
Trustee shall promptly (i) distribute Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of the Preferred
Securities and the Common Securities held by each Holder, which Debentures bear
accrued and unpaid interest and Additional Amounts in an amount equal to the
accumulated and unpaid Distributions on and any Additional Amounts with respect
to the Preferred Securities and the Common Securities of such Holder, in
exchange for the Preferred Securities and Common Securities of such Holder and
(ii) dissolve the Trust.
(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Common Securities will no longer be deemed to
be outstanding and may be canceled by the Regular Trustees and (ii) Certificates
representing Common Securities will be deemed to represent beneficial interests
in the Debentures having an aggregate principal amount equal to the stated
liquidation amount of, and bearing accrued and unpaid interest and Additional
Amounts equal to accumulated and unpaid Distributions on and any Additional
Amounts with respect to, such Common Securities until such Certificates are
presented to Centex or its agent for cancellation and Debentures are issued in
lieu thereof. Debentures distributed to holders of such Certificates shall not
be issued in the form of a global certificate or certificates representing such
Debentures or any other form intended to facilitate book-entry trading in
beneficial interests in such Debentures.
4. REDEMPTION OF DEBENTURES. The Common Securities may be redeemed only
if Debentures having an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities and the Common Securities are
repaid or redeemed as set forth below:
(a) Upon the repayment of the Debentures, in whole or in part, whether
at maturity, upon redemption at any time or from time to time [on or after
_________, ____], the proceeds of such repayment will be promptly applied to
redeem Pro Rata Preferred Securities and Common Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
repaid or redeemed, upon not less than 30 nor more than 60 days' notice, at a
redemption price [of $______ per Preferred Security and Common Security plus an
amount equal to accumulated and unpaid Distributions thereon and any Additional
Amounts with respect thereto to, but excluding, the date of redemption, payable
in cash (the "Redemption Price").] [equal to (i) in the case of the optional
redemption of the Debentures upon the occurrence and continuation of a Special
Event (as defined below), the Special Event Redemption Price (as defined below)
or (ii) in the case of the optional redemption of the Debentures other than as
contemplated in clause (i) above, the Optional Redemption Price (as defined
below). The Special Event Redemption Price and the Optional Redemption Price are
referred to collectively as the "Redemption Price."] The date of any such
repayment or
C-4
<PAGE> 85
redemption of Preferred Securities and Common Securities shall be established to
coincide with the repayment or redemption date of the Debentures.
["Special Event Redemption Price" shall be equal to the greater of (i)
the liquidation amount of the Common Securities to be redeemed and (ii) the
Make-Whole Amount, in each case plus an amount equal to accumulated and unpaid
Distributions thereon and any Additional Amounts with respect thereto to, but
excluding, the date of redemption.
"Optional Redemption Price" shall be equal to the greater of (i) the
liquidation amount of the Common Securities to be redeemed and (ii) the
Make-Whole Amount, in each case plus an amount equal to accumulated and unpaid
Distributions thereon and any Additional Amounts with respect thereto to, but
excluding, the date of redemption.
"Make-Whole Amount" shall be equal to, as determined by the Quotation
Agent, the sum of the present values, calculated as of the redemption date, of
(i) each interest payment that would have been payable on the Debentures or
portions thereof being redeemed, if such Debentures or portions thereof were not
redeemed, on each scheduled interest payment date occurring after the redemption
date (excluding any accrued interest for the period prior to the redemption
date) and (ii) the principal amount of such Debentures or portions thereof that
would have been payable, if such Debentures or portions thereof were not
redeemed, at the scheduled maturity of such Debentures or portions thereof being
redeemed (the "Remaining Life"), in each case discounted to the redemption date
on a semiannual basis (assuming a 360-day year consisting of 30-day months) at
the Adjusted Treasury Rate plus ___ basis points for the purpose of calculating
the Optional Redemption Price and ___ basis points for the purpose of
calculating the Special Event Redemption Price.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to (i) the yield, under the heading which represents
the average for the immediately prior week, appearing in the most recently
published statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Federal Reserve Board and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity date corresponding to the Remaining Life (if no maturity date is within
three months before or after the Remaining Life, yields for the two published
maturity dates most closely corresponding to the Remaining Life shall be
interpolated and the Adjusted Treasury Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding to the nearest
month) or (ii) if such release (or any successor release) is not published
during the week preceding the calculation date or does not contain such yields,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, in each case calculated on
the third Business Day preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity date comparable to the
Remaining Life that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the Remaining Life. If
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no United States Treasury security has a maturity date which is within a period
from three months before to three months after the Remaining Life, the two most
closely corresponding United States Treasury securities shall be used as the
Comparable Treasury Issue, and the Adjusted Treasury Rate shall be interpolated
or extrapolated on a straight-line basis, rounding to the nearest month using
such securities.
"Quotation Agent" means ________________ and its successors; provided,
however, that if the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), Centex shall
substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means: (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with Centex.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of five Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (ii) if the Debenture Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Debenture Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such redemption date.]
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Common Securities will be redeemed as
described in Section 4(e)(ii) below, and the Common Securities will be redeemed
Pro Rata with the Preferred Securities, except that if an Event of Default has
occurred and is continuing, the Preferred Securities will have a priority over
the Common Securities with respect to payment of the Redemption Price. If a
partial redemption would result in the delisting of the Preferred Securities by
any national securities exchange or other organization on which the Preferred
Securities are then listed or traded, Centex pursuant to the Indenture will
redeem Debentures only in whole and, as a result, the Trust may redeem the
Common Securities only in whole.
(c) If, at any time, a Tax Event or an Investment Company Event (each
as hereinafter defined, and each a "Special Event") shall occur and be
continuing, Centex shall have the right at any time [prior to ________ ___,
____], upon not less than 30 nor more than 60 days' notice, to redeem the
Debentures in whole [or][but not] in part for cash at the [Special Event]
Redemption Price within 90 days following the occurrence of such Special Event,
and promptly following such redemption, Preferred Securities and Common
Securities with an aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so redeemed will be redeemed by the Trust at the
[Special Event] Redemption Price on a Pro Rata basis. The Common Securities will
be redeemed Pro Rata with the Preferred Securities, except that if an
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Event of Default has occurred and is continuing, the Preferred Securities will
have a priority over the Common Securities with respect to payment of the
[Special Event] Redemption Price.
"Tax Event" means that the Sponsor and the Regular Trustees shall have
received an Opinion of Counsel, who shall not be an employee of the Sponsor and
who shall be experienced in such matters, to the effect that as a result of (a)
any amendment to, or change (including any announced prospective change) in, the
laws (or any rules or regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) any amendment
to, or change in, an interpretation or application of any such laws, rules or
regulations by any legislative body, court, governmental agency or regulatory
authority (including the enactment of any legislation or the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement by any legislative body, court, governmental agency or regulatory
authority that provides for a position with respect to such laws, rules or
regulations that differs from its previous position or a theretofore commonly
accepted position or (d) any action taken by any governmental agency or
regulatory authority, which amendment or change is enacted, promulgated, issued
or announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after ________ ___, ____, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90 days
of the date thereof, subject to United States Federal income tax with respect to
income accrued or received on the Debentures, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis amount of
taxes, duties or other governmental charges or (iii) interest payable by Centex
to the Trust on the Debentures is not, or within 90 days of the date thereof
will not be, deductible by Centex for United States Federal income tax purposes.
"Investment Company Event" means that the Sponsor and the Regular
Trustees shall have received an Opinion of Counsel, who shall not be an employee
of the Sponsor and who shall be experienced in practice under the Investment
Company Act, that, as a result of the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in Investment Company Act Law"), there is more than an insubstantial
risk that the Trust is or will be considered an Investment Company that is
required to be registered under the Investment Company Act, which Change in
Investment Company Act Law becomes effective on or after ________ ___, ____.
(d) The Trust may not redeem fewer than all the outstanding Common
Securities unless all accumulated and unpaid Distributions and Additional
Amounts have been paid on all Common Securities for all [quarterly]
[semi-annual] Distribution periods terminating on or prior to the date of
redemption.
(e) (i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Preferred Securities and the Common Securities
(a "Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 30 nor more than 60 days
prior to the date fixed for redemption or exchange thereof. For purposes of the
calculation of the date of redemption or exchange and the dates on which notices
are given pursuant to this Section 4(e)(i), a Redemption/Distribution Notice
shall be deemed to be given on
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the day such notice is first mailed by first-class mail, postage prepaid, to
Holders of Preferred Securities and Common Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of Preferred
Securities and Common Securities at the address of each such Holder appearing in
the books and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings with respect to
any other Holder.
(ii) In the event that fewer than all the outstanding Common Securities
are to be redeemed, the Common Securities to be redeemed will be redeemed Pro
Rata from each Holder of Common Securities (subject to adjustment to eliminate
fractional Common Securities).
(iii) If the Trust gives a Redemption/Distribution Notice in respect of
a redemption of Common Securities as provided in this Section 4, then
immediately prior to the close of business on the redemption date, provided that
Centex has paid the Property Trustee, in immediately available funds, a
sufficient amount of cash in connection with the related redemption or maturity
of the Debentures, Distributions will cease to accumulate on the Common
Securities called for redemption, such Common Securities will no longer be
deemed to be outstanding and all rights of Holders of such Common Securities so
called for redemption will cease, except the right of the Holders of such Common
Securities to receive the Redemption Price, but without interest on such
Redemption Price. Neither the Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Common Securities which
have been so called for redemption. If any date fixed for redemption of Common
Securities is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day falls in the next calendar year, such payment will be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If payment of the
Redemption Price in respect of Common Securities is improperly withheld or
refused and not paid by the Property Trustee, Distributions on such Common
Securities will continue to accumulate, from the original redemption date to the
date of payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to the Holders of the Common Securities.
[5. CONVERSION RIGHTS. The Holders of Common Securities shall have the
right at any time prior to the close of business on ___________, ____ or, in the
case of Common Securities called for redemption, prior to the close of business
on the Business Day immediately prior to the redemption date, at their option,
to cause the Conversion Agent to convert Common Securities, on behalf of the
converting Holders, into shares of Common Stock in the manner described herein
on and subject to the following terms and conditions:
(a) The Common Securities will be convertible at the office of the
Conversion Agent into fully paid and nonassessable shares of Common Stock
pursuant to the Holder's direction to the Conversion Agent to exchange such
Common Securities for a portion of the Debentures theretofore held by the Trust
on the basis of one Common Security per $______ principal amount of Debentures,
and immediately convert such amount of Debentures into fully
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paid and nonassessable shares of Common Stock at an initial rate of __ shares of
Common Stock per $_______ principal amount of Debentures (which is equivalent to
a conversion price of $___ per share of Common Stock, subject to certain
adjustments set forth in Sections ___ and ___ of the Supplemental Indenture (as
so adjusted, the "Conversion Price")).
(b) In order to convert Common Securities into shares of Common Stock,
the Holder shall submit to the Conversion Agent at the office referred to above
an irrevocable request to convert Common Securities on behalf of such Holder
(the "Conversion Request"), together, if the Common Securities are in
certificated form, with such Common Security Certificates. The Conversion
Request shall (i) set forth the number of Common Securities to be converted and
the name or names, if other than the Holder, in which the shares of Common Stock
should be issued and (ii) direct the Conversion Agent (a) to exchange such
Common Securities for a portion of the Debentures held by the Trust (at the rate
of exchange specified in the preceding paragraph) and (b) to immediately convert
such Debentures on behalf of such Holder into Common Stock, subject to certain
adjustments set forth in the Supplemental Indenture (at the conversion rate
specified in the preceding paragraph). The Conversion Agent shall notify the
Trust of the Holder's election to exchange Common Securities for a portion of
the Debentures held by the Trust and the Trust shall, upon receipt of such
notice, deliver to the Conversion Agent the appropriate principal amount of
Debentures for exchange in accordance with this Section. The Conversion Agent
shall thereupon notify the Sponsor of the Holder's election to convert such
Debentures into shares of Common Stock. If a Common Security is surrendered for
conversion after the close of business on any regular record date for payment of
a Distribution and before the opening of business on the corresponding
Distribution payment date, then, notwithstanding such conversion, the
Distribution payable on such Distribution payment date will be paid in cash to
the Person in whose name the Common Security is registered at the close of
business on such record date, and (other than a Common Security or a portion of
a Common Security called for redemption on a redemption date occurring after
such record date and on or prior to such Distribution payment date) when so
surrendered for conversion, the Common Security must be accompanied by payment
of an amount equal to the Distribution payable on such Distribution payment
date. Except as provided above, neither the Trust nor the Sponsor will make, or
be required to make, any payment, allowance or adjustment upon any conversion on
account of any accumulated and unpaid Distributions accumulated on the Common
Securities surrendered for conversion, or on account of any accumulated and
unpaid dividends on the shares of Common Stock issued upon such conversion, and
the delivery of shares of Common Stock upon conversion of the Common Securities
shall be deemed to constitute full payment for all accumulated and unpaid
Distributions on the Common Securities. Common Securities shall be deemed to
have been converted immediately prior to the close of business on the day on
which a Notice of Conversion relating to such Common Securities is received by
the Trust in accordance with the foregoing provision (the "Conversion Date").
The Person or Persons entitled to receive shares of Common Stock issuable upon
conversion of the Debentures shall be treated for all purposes as the record
holder or holders of such Common Stock at such time. As promptly as practicable
on or after the Conversion Date, the Sponsor shall issue deliver at the office
of the Conversion Agent a certificate or certificates for the number of full
shares of Common Stock issuable upon such conversion, together with the cash
payment, if any, in lieu of any fraction of any share to the Person or Persons
entitled to receive the same, unless otherwise directed by the Holder in the
Notice of Conversion and the
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Conversion Agent shall distribute such certificate or certificates, together
with the applicable cash payment, if any, to such Person or Persons.
(c) Each Holder of a Common Security by his acceptance thereof appoints
The Chase Manhattan Bank, as the "Conversion Agent" for the purpose of effecting
the conversion of Common Securities in accordance with this Section. In
effecting the conversion and transactions described in this Section, the
Conversion Agent shall be acting as agent of the Holders of Common Securities
directing it to effect such conversion transactions. The Conversion Agent is
hereby authorized (i) to exchange Common Securities from time to time for
Debentures held by the Trust in connection with the conversion of such Common
Securities in accordance with this Section and (ii) to convert all or a portion
of the Debentures into shares of Common Stock and thereupon to deliver such
shares of Common Stock in accordance with the provisions of this Section and to
deliver to the Trust a new Debenture or Debentures for any resulting unconverted
principal amount.
(d) No fractional shares of Common Stock will be issued as a result of
conversion, but in lieu thereof, such fractional interest will be paid by the
Sponsor in cash (based upon the Closing Price (as defined in the Indenture) of
shares of Common Stock on the date such Common Securities are surrendered for
conversion to the Trust) to the Conversion Agent, which in turn will make such
payment to the Holder or Holders of Common Securities so converted, or, if such
day is not a Trading Day (as defined in the Indenture), on the next Trading Day.
(e) The Sponsor shall at all times reserve and keep available out of
its authorized and unissued Common Stock, solely for issuance upon the
conversion of the Debentures, free from any preemptive or other similar rights,
such number of shares of Common Stock as shall from time to time be issuable
upon the conversion of all the Debentures then outstanding. Notwithstanding the
foregoing, the Sponsor shall be entitled to deliver upon conversion of
Debentures, shares of Common Stock reacquired and held in the treasury of the
Sponsor (in lieu of the issuance of authorized and unissued shares of Common
Stock), so long as any such treasury shares are free and clear of all liens,
charges, security interests or encumbrances. Any shares of Common Stock issued
upon conversion of the Debentures shall be duly authorized, validly issued and
fully paid and nonassessable. The Trust shall deliver the shares of Common Stock
received upon conversion of the Debentures to the converting Holder of Common
Securities free and clear of all liens, charges, security interests and
encumbrances, except for United States withholding taxes. Each of the Sponsor
and the Trust shall prepare and shall use its best efforts to obtain and keep in
force such governmental or regulatory permits or other authorizations as may be
required by law, and shall comply with all applicable requirements as to
registration or qualification of Common Stock (and all requirements to list
Common Stock issuable upon conversion of Debentures that are at the time
applicable), in order to enable the Sponsor to lawfully issue Common Stock to
the Trust upon conversion of the Debentures and the Trust to lawfully deliver
Common Stock to each Holder of Common Securities upon conversion of the Common
Securities.
(f) The Sponsor will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Debentures and the delivery of the shares of Common Stock by the Trust upon
conversion of the Common Securities. The Sponsor shall not, however, be required
to pay any tax which may be payable in respect of any
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transfer involved in the issue and delivery of shares of Common Stock in a name
other than that in which the Common Securities so converted were registered, and
no such issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Trust the amount of any such tax, or has established
to the satisfaction of the Trust that such tax has been paid.]
(g) Nothing in the preceding paragraph (f) shall limit the requirement
of the Trust to withhold taxes pursuant to the terms of the Common Securities or
set forth in this Exhibit C to the Declaration or to the Declaration itself or
otherwise require the Property Trustee or the Trust to pay any amounts on
account of such withholdings.]
6. VOTING RIGHTS. (a) Except as provided under paragraph [6](b) below
and as otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) Holders of Common Securities have the sole right under the
Declaration to increase or decrease the number of Trustees, and to appoint,
remove or replace a Trustee, any such increase, decrease, appointment, removal
or replacement to be approved by Holders of Common Securities representing a
Majority of Outstanding Common Securities.
If any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration, other than as described in
Section 12.01(b) of the Declaration, or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than as described in Section 8.01
of the Declaration or Section 3 of this Exhibit C, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal as
a single class and such amendment or proposal shall not be effective except with
the approval of the Holders of Securities of at least a Majority of Outstanding
Securities, voting together as a single class; provided, however, that (A) if
any amendment or proposal referred to in clause (i) above would adversely affect
only the Preferred Securities or the Common Securities, then only the affected
class of Securities will be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with the approval of at
least a Majority of Outstanding Securities of such class, (B) the rights of
Holders of Common Securities under Section 5.01 of the Declaration to increase
or decrease the number of, and to appoint, replace or remove, Trustees shall not
be amended without the consent of each Holder of Common Securities, and (C)
amendments to the Declaration shall be subject to such further requirements as
are set forth in Sections 12.01 and 12.02 of the Declaration.
In the event the consent of the Property Trustee, as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination. The Property
Trustee shall vote with respect to such amendment, modification or termination
as directed by a Majority of Outstanding Securities voting together as a single
class; provided, however, that where such amendment, modification or termination
of the Indenture requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal amount
of the Debentures or (2) each holder of Debentures, the Property
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Trustee may only vote with respect to that amendment, modification or
termination as directed by, in the case of clause (1) above, the vote of Holders
of Securities representing such specified percentage of the aggregate
liquidation amount of the Securities, or, in the case of clause (2) above, each
Holder of Securities; and provided, further, that the Property Trustee shall be
under no obligation to take any action in accordance with the directions of the
Holders of Securities unless the Property Trustee shall have received, at the
expense of the Sponsor, an Opinion of Counsel experienced in such matters to the
effect that the Trust will not be classified for United States Federal income
tax purposes as other than a grantor trust on account of such action.
So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee of the Indenture (the
"Debenture Trustee"), or exercising any trust or power conferred on such
Debenture Trustee with respect to the Debentures, (ii) waive any past default
that is waivable under Section 6.06 of the Indenture or (iii) exercise any right
to rescind or annul a declaration of acceleration of the maturity of the
principal of the Debentures, without, in each case, obtaining the prior approval
of the Holders of a Majority of Outstanding Common Securities and Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of the Common Securities except by subsequent
vote of such Holders. The Property Trustee shall notify each Holder of Common
Securities of any notice of default with respect to the Debentures.
Notwithstanding any other provision of these terms, each Holder of
Common Securities will be deemed to have waived any Event of Default with
respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived by the
Holders of Preferred Securities as provided in the Declaration or otherwise
eliminated, and until all Events of Default with respect to the Preferred
Securities have been so cured, waived by the Holders of Preferred Securities or
otherwise eliminated, the Property Trustee will be deemed to be acting solely on
behalf of the Holders of Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Declaration or of the Securities. In the event
that any Event of Default with respect to the Preferred Securities is waived by
the Holders of Preferred Securities as provided in the Declaration, the Holders
of Common Securities agree that such waiver shall also constitute the waiver of
such Event of Default with respect to the Common Securities for all purposes
under the Declaration without any further act, vote or consent of the Holders of
the Common Securities.
A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities will constitute a
waiver of the corresponding Event of Default under the Declaration in respect of
the Securities.
Any required approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote to be mailed to each Holder of
record of Common Securities. Each such notice will include a statement setting
forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
and (iii) instructions for
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the delivery of proxies. Any action that may be taken at a meeting of the
Holders of Securities may be taken without a meeting and without prior notice if
a consent in writing setting forth the action so taken is signed by Holders of
Securities owning not less than the minimum aggregate liquidation amount of
Securities that would be necessary to authorize or take such action at a meeting
at which all Holders of Securities having a right to vote thereon were present
and voting.
No vote or consent of the Holders of Common Securities will be required
for the Trust to redeem and cancel Common Securities or to distribute the
Debentures in accordance with the Declaration or Section 3 of this Exhibit C.
7. PRO RATA TREATMENT. A reference in these terms of the Common
Securities to any payment, Distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding, and
only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
8. RANKING. The Common Securities rank pari passu and payment thereon
will be made Pro Rata with the Preferred Securities, except that when an Event
of Default occurs and is continuing, the rights of Holders of Common Securities
to payment in respect of Distributions and payments upon liquidation, redemption
or otherwise are subordinate to the rights of Holders of the Preferred
Securities.
9. TRANSFER, EXCHANGE, METHOD OF PAYMENTS. Payment of Distributions and
any Additional Amounts and payments on redemption of the Common Securities will
be payable, the transfer of the Common Securities will be registrable, and
Common Securities will be exchangeable for Common Securities of other
denominations of a like aggregate liquidation amount, at the corporate trust
office of the Property Trustee (or its Affiliate) in The City of New York;
provided that payment of Distributions and any Additional Amounts may be made at
the option of the Regular Trustees on behalf of the Trust by check mailed to the
address of the Persons entitled thereto and that the payment on redemption of
any Common Security will be made only upon surrender of such Common Security to
the Property Trustee. Notwithstanding the foregoing, transfers of Common
Securities are subject to conditions set forth in Section 9.01(c) of the
Declaration.
10. ACCEPTANCE OF INDENTURE. Each Holder of Common Securities, by the
acceptance thereof, agrees to the provisions of the Indenture and the
Debentures, including the subordination provisions of the Indenture.
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11. NO PREEMPTIVE RIGHTS. The Holders of Common Securities shall have
no preemptive or similar rights to subscribe to any additional Common Securities
or Preferred Securities.
12. MISCELLANEOUS. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder of Common Securities without charge on written request to the Trust
at its principal place of business.
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Annex I
FORM OF COMMON SECURITY CERTIFICATE
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Certificate Number Number of Common Securities:
------------
-----------
Aggregate Liquidation Amount: $
------------
Certificate Evidencing Common Securities
of
Centex Trust [I] [II]
____% [[Convertible] Trust Common Securities]
(liquidation amount $______ per Common Security)
Centex Trust [I] [II], a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of
____________________________ (_________) common securities of the Trust
representing common undivided beneficial interests in the assets of the Trust
and designated the "____% [[Convertible] Trust Common Securities]" (liquidation
amount $______ per Common Security) (the "Common Securities"). The Common
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this Certificate duly endorsed
and in proper form for transfer and satisfaction of the other conditions set
forth in the Declaration (as defined below) including, without limitation,
Section 9.01(c) thereof. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this Certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Declaration of Trust of the Trust dated as of __________,
____, as the same may be amended from time to time (the "Declaration") including
the designation of the terms of Common Securities as set forth in Exhibit C
thereto. The Common Securities and the Preferred Securities issued by the Trust
pursuant to the Declaration represent undivided beneficial interests in the
assets of the Trust, including the Debentures (as defined in the Declaration)
issued by Centex Corporation, a Nevada corporation, to the Trust pursuant to the
Indenture referred to in the Declaration. The Trust will furnish a copy of the
Declaration and the Indenture to the Holder without charge upon written request
to the Trust at its principal place of business or registered office.
The Holder of this Certificate, by accepting this Certificate, is
deemed to have agreed to the terms of the Indenture and the Debentures,
including that the Debentures are
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subordinate and junior in right of payment to all Senior Debt (as defined in the
Indenture) as and to the extent provided in the Indenture.
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed this
Certificate this ___ day of _____________, ____.
CENTEX TRUST [I] [II]
By , as Regular Trustee
---------------------
Name:
Title: Regular Trustee
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[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate
per annum of ____% (the "Coupon Rate") of the stated liquidation amount of
$______ per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions that are not paid
when such distributions are payable (or would be payable but for the deferral of
such payment pursuant to Section 2.1(b) below or a default by PGS in the payment
of interest on the Debentures) will accumulate additional distributions thereon
at the Coupon Rate per annum (to the extent permitted by applicable law),
compounded [quarterly] [semi-annually]. The term "Distributions" as used herein
means such periodic cash distributions and any such additional distributions
payable unless otherwise stated. A Distribution will be made by the Property
Trustee only to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Trust has funds on
hand legally available therefor. The amount of Distributions payable for any
period will be computed for any full [quarterly] [semi-annual] Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full [quarterly] [semi-annual] Distribution period for
which Distributions are computed. Distributions will be computed on the basis of
the actual number of days elapsed per [90-day quarter] [180-day semi-annual
period].
Distributions on the Common Securities will accumulate from ________
___, _____ and will be payable [quarterly] [semi-annually] in arrears, on
[________ ___, ________ ___,] ________ ___ and ________ ___ of each year,
commencing on ________ ___, ____, except as otherwise described below, but only
if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures, Centex
has the right under the Indenture for the Debentures to defer payments of
interest on the Debentures by extending the interest payment period of the
Debentures at any time and from time to time for a period not exceeding [20]
[10] consecutive [quarterly] [semi-annual] interest periods (each, an "Extension
Period"), during which Extension Period no interest shall be due and payable on
the Debentures. As a consequence of such deferral, Distributions shall also be
deferred. Despite such deferral, Distributions will continue to accumulate on
the Common Securities with additional distributions thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at the Coupon Rate compounded
[quarterly] [semi-annually] during any such Extension Period. No Extension
Period shall extend beyond the stated maturity of the Debentures. Prior to the
termination of any such Extension Period, Centex may further extend such
Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed [20] [10] consecutive
[quarterly] [semi-annual] interest periods or extend beyond the stated maturity
of the Debentures. Upon the termination of any Extension Period and the payment
of all amounts then due, Centex may commence a new Extension Period, subject to
the above requirements. On the Distribution payment date at the end of an
Extension Period, payments of accumulated Distributions (including any
Additional Amounts) will be payable to Holders of Common Securities as they
appear on the books and records of the Trust (regardless of who the Holders may
have been on other dates during the Extension Period) on the record date for
such Distribution payment date.
C-17
<PAGE> 98
The Common Securities shall be redeemable as provided in the
Declaration.
[The Common Securities shall be convertible into shares of Common Stock
(as defined in the Declaration), through (i) the exchange of Common Securities
for a portion of the Debentures and (ii) the immediate conversion of such
Debentures into Common Stock, in the manner and according to the terms set forth
in the Declaration.]
C-18
<PAGE> 99
[CONVERSION REQUEST
To: The Chase Manhattan Bank,
as Conversion Agent for Centex Trust [I] [II]
The undersigned owner of these Common Securities hereby irrevocably
exercises the option to convert these Common Securities, or the portion below
designated, into Common Stock (as that term is defined in the Amended and
Restated Declaration of Trust dated as of ____________, ____ (as amended from
time to time, the "Declaration"), by __________, __________ and _____________,
as Regular Trustees, Chase Manhattan Bank USA, National Association, as the
Delaware Trustee, The Chase Manhattan Bank, as the Property Trustee, Centex
Corporation, as Sponsor, and by the Holders, from time to time, of undivided
beneficial interests in the assets of the Trust to be issued pursuant to the
Declaration) in accordance with and subject to the terms and conditions of the
Declaration. Pursuant to the aforementioned exercise of the option to convert
these Common Securities, the undersigned hereby directs the Conversion Agent (as
that term is defined in the Declaration) to (i) exchange such Common Securities
for a portion of the Debentures (as that term is defined in the Declaration)
held by Centex Trust [I] [II] (at the rate of exchange specified in the terms of
the Common Securities set forth as Exhibit C to the Declaration) and (ii)
immediately convert such Debentures on behalf of the undersigned, into Common
Stock (at the conversion rate specified in the terms of the Common Securities
set forth as Exhibit C to the Declaration), subject to certain adjustments set
forth in the Supplemental Indenture (as that term is defined in the
Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares of Common Stock issuable and deliverable upon conversion, together with
any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares of Common Stock are to be issued in the name of a
Person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto.
C-19
<PAGE> 100
Date: _______________, _____
in whole ___ in part ___
Number of Common Securities to
be converted:
-----------------------
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in
which the shares of Common Stock
are to be issued, along with the
address or addresses of such Person
or Persons:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Signature (for conversion only)
Please Print or Type Name and
Address, Including Zip Code, and
Social Security or Other
Identifying Number
----------------------------------
----------------------------------
----------------------------------
Signature Guarantee:** _________
----------
(Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Conversion Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)]
C-20
<PAGE> 101
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
{Insert assignee's social security or tax identification number}
----------------------------------------------------------------
----------------------------------------------------------------
{Insert address and zip code of assignee}
and irrevocably appoints
----------------------------------------------------------------
----------------------------------------------------------------
agent to transfer
------------------------------------------------------------
this Common Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
-------------------------------
Signature:
-------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THIS PREFERRED SECURITY CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
C-21
